Mansfield v. Holton

Young, J. Real estate vests in the heirs, charged with the payment of debts and administration expenses. Their interest in the property is not unlike that of a mortgagor ( Gibson v. Farley, 16 Mass. 280); for they may provide the money needed to pay their ancestor’s debts and the expenses of administration, and when that is done the court will refuse to license a sale of the land, even if the debts have not been paid. Fay v. Taylor, 2 Gray 154. It is therefore the duty of an administrator to accept money of the heirs for that purpose; and if he does accept it, he will be charged with it the same as if he had received it from a sale of the land. Griswold v. Chandler, 5 N. H. 492; Brown v. Fessenden, 81 Me. 522; Campbell v. McCormick, 1 Ohio C. C. 504, 508. The plaintiff managed the real estate under an agreement to apply the net income to the payment of debts; so if there was any such income while he had charge of the property, he has received money which it was his duty to apply as a part of the deceased’s estate. Consequently, in this ease he may be compelled as administrator to account for the net income of the real estate, although he could not be so compelled if he had managed the property for his own benefit, or for the benefit of the heirs. Perkins v. Perkins, 58 N. H. 405; Lucy v. Lucy, 55 N. H. 9. Since the plaintiff can only be compelled to account for what he agreed to apply to the payment of debts, it will be necessary to ascertain just what the agreement contemplated should be applied for that purpose. It provided that the plaintiff should “ collect all rents and profits from houses and real estate to which I am entitled as heir of the estate of Henry Holton and which are included in the Holton estate,” and should “pay debts on the estate with the proceeds thus collected, also costs of repairing and keeping said real estate in rentable condition.” If this language *419 is given its ordinary meaning, he is to account for the net income of the property as a whole — not for the net income of Massachusetts or New Hampshire property as such. Consequently, if there was some net income from the property in Massachusetts, but none from the whole property, he has not received any money from the defendant to pay the debts of the deceased, and there is nothing for which he can be compelled to account, either to the defendant or to the deceased’s creditors. The other question raised by the plaintiff’s exception is whether, when the parties do not agree as to the amount of money the administrator has received from the heirs to pay the debts of the deceased, the probate court has jurisdiction of that issue; or, stated another way, whether the probate court of this state has jurisdiction of disputes growing out of, but not connected with, the settlement of an estate. It neither has such statutory (P. S., c. 182, s. 2) nor such common-law jurisdiction (Hayes v. Hayes, 48 N. H. 219, 229), nor do the cases on which the plaintiff relies sustain his contention that it has. Those outside of Massachusetts simply hold that if the administrator occupies the real estate, under an agreement to use the income to pay the debts of the deceased, he should be charged with tire income as administrator. Brown v. Fessenden, 81 Me. 522; Campbell v. McCormick, 1 Ohio C. C. 504, 508; Stiver v. Stiver, 8 Ohio St. 217. To the same effect is Griswold v. Chandler, 5 N. H. 492. Although the Massachusetts cases hold that if there is a dispute as to the amount of income the administrator has received the probate court has jurisdiction to determine the controversy, they were all decided under a statute which confers such jurisdiction on the court in express terms. Gibson v. Farley, 16 Mass. 280; Stearns v. Stearns, 1 Pick. 157; Wilson v. Shearer, 9 Met. 504; Newcomb v. Stebbins, 9 Met. 540; Palmer v. Palmer, 13 Gray 326; Almy v. Crapo, 100 Mass. 218; Towle v. Swasey, 106 Mass. 100; Brooks v. Jackson, 125 Mass. 307; Choate v. Jacobs, 136 Mass. 297; Brigham v. Elwell, 145 Mass. 520. It can serve no useful purpose to consider the effect of the defendant’s exception ; for whether he is right or wrong, the plaintiff cannot be charged in this proceeding with the income of the Massachusetts property. Assuming that the court could ascertain the net income from that property, it could not charge the plaintiff with it as assets in his hands for distribution; for the statute which confers jurisdiction provides, in substance, that when there is an agreement between the heirs and the administrator, the income shall be applied in accordance with it. Brigham v. Elwell, 145 Mass. 520; Stearns v. Stearns, 1 Pick. 157; Gibson v. Farley, 16 Mass. 280. Therefore if this decree is considered as a final *420 ad judication of the controversy in so far as the Massachusetts property is concerned, all that it establishes is that the administrator has so much money in his hands to offset any loss he may have sustained on the New Hampshire property. Since the plaintiff is only chargeable with the net income of the property as a whole, he cannot be charged with anything until it has been ascertained whether there was any such net income; but when that has-been done, if there is any such income he must account for it. Greorge B. French, for the motion. Sam K. Paige (of Massachusetts), opposed. Case discharged. All concurred.