Palmer v. Steiner

BRICKELL, C. J. The rule of the common law is, that if a lessor dies, rent which has accrued, which is due and payable, passes to the executor or administrator; rent subsequently accruing follows the reversion, and belongs to the heir. The rule here is modified by the statutes which confer on the personal representative power to intercept the descent to the heir, to take rents accruing, and to rent or sell the lands, when necessary for the payment of debts.—1 Brick. Dig. p. 937, §§ 330-33. When the power is exercised, when rent accruing is claimed by the personal representative, he has the same right and title to it, which he has to other dioses in action of the testator or intestate'; he -takes it, as he would take an ordinary debt contracted in the life of the deceased, but falling due after his death. There is no new contract or agreement, by which the tenant becomes liable to him in his representative capacity for use and occupation; he simply succeeds to the right of his intestate or testator, the descent to and right of the heir being intercepted in obedience to the purposes of the statute to further the payment of debts. A demand against a testator or intestate, held and owned at the time of his death, is a valid set-off to a demand owing him, and may be interposed to an action by his personal representative on the latter demand, while the rule is otherwise as to a debt contracted with, or subsequently accruing to the personal representative.—Perrine v. Warren, 3 Stew. 151. The sets-off interposed by the pleas, were properly 402 allowed; they were of debts of the intestate, held and owned by the defendants at the time of his death, and it was in bis right, on a debt accruing to him, the plaintiffs were suing. Nine months from the declaration of insolvency had not expired when the trial was had, and the validity of the sets-off was unaffected, as claimed, by the failure to file them in the court of probate. Affirmed.