Stewart v. Smiley

OPINION. Cock'rill, C. J. 1. Administrator: Necessity for appointment. It is probable that there was no real necessity for the appointment of an administrator de bonis non — at least none is apparent from the record. The probate court, having jurisdiction in the matter, has adjudged, however, that the necessity existed, and that adjudication is conclusive in a collateral issue. Adams v. Thomas, 44 Ark., 267. Conceding that the appellee is the lawful administrator of the estate, his authority to sue for the rents of the real estate does not follow. The statute confers the power upon an administrator to control the lands of his intestate for the purpose of paying debts. His authority in that respect is derived solely from the statute, for at common law the administrator had nothing whatever to do with the lands of his intestate. But the charge created upon the lands by the statute for the purpose of paying the intestate's debts is not a perpetual one, even when the debts of the estate remain unpaid, as was ruled in Mays v. Rogers, 37 Ark., 155. The heirs cannot be forever deterred from the possession of the lands of their ancestor by the neglect of the administrator and the creditors to enforce payment of debts due by the estate. Ib. ■ And if the claims for which the estate is liable have in fact been discharged, there is no room to contend that the statute still confers the right upon the administrator to control the lands. Menifee v. Menifee, 8 Ark. 47-8; Reed v. Ash, 30 ib., 775; Tate v. Jay, 31 ib., 576. There is no pretense that there were any demands of any sort against the estate of Davis at any time after the appointment of the administrator de bonis non. They had been paid off and the administration practically closed long before letters were granted to him. The lands had passed into the possession of the heirs and were not needed for any purpose of administration. The administrator then had no power to control the rents. Reed v. Ash and cases, supra; Flood v. Pilgrim, 32 Wisc., 376; Filby, as admr., v. Carrier, 45 ib., 469. The court sustained the recovery, however, upon the assumption that the promise of the tenant to pay the rent to the administrator, after being informed by the agent who had negotiated the lease for the heirs that he was the proper person to receive it, conferred upon him the authority to sue for the recovery in his official capacity. The-judgment cannot be sustained upon that theory. The administrator had not the right, against the consent of the heirs, to occupy the lands or collect the rents. If he had received the rents at their request, his receipt to the-tenant would have discharged the debt, upon the principle-that a payment to the agent is a payment to the principal. In such case the administrator would account for the rents with the general assets, not by force of any requirement of the statute, but rather in pursuance of his agreement to do so. Kimball v. Sumner, 62 Maine, 305; Lucy v. Lucy, 55 N. H., 9; Conger v. Atwood, 28 Ohio St., 134; Schouler Ex. & Ad., sec. 213. Consent cannot add anything to his official capacity.. If the agent in this case was authorized to act for the heirs, in the dealing with the administrator about the payment of the rent, the most that can be said that was done was simply an agreement made to the effect that a debt due to the heirs should be paid by the tenant to the administrator. This conferred no power upon the administrator as such. Nor did it create the relation of landlord and tenant between him and the appellant. That relation already existed between the appellant and the heirs of Davis. The possession was derived from them. The administrator was never in possession, and had no control over or interest in the lands. Under such circumstances it is difficult to understand how an agreement that the rent should be paid to him, could convert him into a landlord. Hansen v. Price, 45 Mich., 519; Wood Landlord and Tenant, sec. 309. His is not the case of an original administrator who, by the terms of the statute, succeeds to the rights and remedies of his intestate. Mansf. Dig., sec. 4161. The authority of the administrator de bonis non is limited to the administration of assets not already administered. State, use of Oliver, v. Rottaken, 34 Ark., 144. In no view of the case had the administrator a legal interest in the matter in controversy, and the judgment must be reversed and the case remanded for further proceedings.