Van Bibber v. Bosley

The opinion of the Court was delivered by Fenner, J. The succession of E. S. Powell was opened in 1871, when H. S. Bosley was duly appointed and qualified as administrator thereof, since which time lio lias liad charge of the succession. All of the debts have been paid long since, and there remains now in his hands the free and unencumbered property of the succession, consisting of real estate and cash on hand. There are five major and two minor heirs, the latter inheriting by representation of their deceased mother, who was the wife of the administrator, and being under the tutorsiiip of the administrator himself. Such being the situation of affairs, two of the major heirs, desiring to put an end to the administration and to enter into possession of their share of the property, have proceeded summarily against the administrator by rule to show cause why he should not be discharged from the administration and why the heirs should not be put in possession. The administrator opposed this demand and is joined in this opposition by himself as tutor of the minor heirs and also by one of the major heirs, who object to holding or taking possession of the property in common witli the plaintiffs. The remaining heirs have not appeared- [184] The contention is that part of the heirs cannot require the administration to be terminated and the estate to be turned over to the heirs in opposition to the wish of their co-heirs representing the largest interest therein. If the administration could be divided and continued as to the interest of the consenting heirs, while terminated as to the interest of plaintiffs, effect might be given to the wish of the former. But the administration is indivisible, and must be continued or terminated as to all; and the question is whether the wishes of the majority can control and destroy the legal rights of the minority. We consider it perfectly clear that when the succession is wound up and all the debts paid, and only its property remains in the hands of the administrator, the purposes of the legal agency confided to him are accomplished, and it is the absolute right of each and every heir to terminate it and to claim possession of his share of the succession, and he cannot be controlled in the exercise of this right by the adverse wishes of his co-heirs. Otherwise the administration might be prolonged and the heir desirous of entering into possession of his own property might be kept out indefinitely. This can work no legal injury to the other heirs; for if they desire to continue the agency of- the administrator in the management of their own Interests, they may do so extra-judicially, and they surely cannot force the continuance of the agency upon their unconsenting co-heir; and if they are unwilling to remain in co-ownership with the latter, the law touching partitions affords them a perfect remedy. We have considered these questions in two recent cases, and we think the principles there laid down sustain the foregoing position. Succession of Baumgarden, 36 Ann. 47; Succession of Geddes, 36 Ann. 964. The cases cited from 30 Ann. 388, and 4th Robinson, 414, recognizing the right of beneficiary heirs to require an administration before a putting in possession, have no application, because here that right has been enjoyed, an administration has been had and it is completed. We find nothing in any of the various judicial proceedings referred to by the administrator to estop the plaintiffs in rule from exercising the right to terminate this administration and be put in possession of their property, and see no reason to disturb the judgment appealed from. Judgment affirmed.