McManany v. Sheridan

ViNslow, J. Ve construe the fourth and fifth paragraphs of the will in question as vesting a present estate in fee in Thomas Sheridan. Vbetber that estate be a base fee by reason of the condition attempted to be imposed by tbe fifth paragraph, or whether such condition be void because 542 too indefinite to be enforced, is not material to the controversy before us, and is not decided. The condition, if valid, is a condition upon which the estate of the nephews and nieces depends for its inception, and not the estate of Thomas. Thomas thus having a present estate in the land, it was competent for the court in the divorce action to divest him of that estate, and vest it in the defendant, Kate Sheridan. She therefore now possesses, by virtue of the divorce decree, all the estate which Thomas had. The administrator bases his right to the possession of the real estate in question upon the provisions of sec. 3823, R. S., which gives to the executor the right to the possession of all real estate of the deceased, except the homestead, until the estate shall have been settled, or until delivered over by order of the county court to the heirs or devisees. All the rights which the executor has to the possession of this real estate he derives from this statute, because he has none at common law. It is stipulated and found as a fact that forty acres of the land in controversy was the homestead of Arthur Sheridan. It seems entirely clear, therefore, that the executor has no right to the possession of this forty acres, because the saméis expressly excepted from the operation of the statute. As to the balance of the disputed land the question is different, but the result the same. This statute has been construed by this court in a number of cases, and the result, of the decisions is that the right of the executor, as against the heir or devisee in possession, to the possession of the real estate is not absolute. Jones v. Billstein, 28 Wis. 221; Flood v. Pilgrim, 32 Wis. 376; Filbey v. Carrier, 45 Wis. 469. If there are no claims against the estate, or if all claims have been paid, the administrator or executor is held not entitled to possession as against the heir or devisee, even though the estate be not finally settled. We see no reason why the same result should not follow where it appears that there is enough personal property in 543 band to pay all debts and legacies. In this case it appears that there is enough personal property and money in hand to pay all debts and legacies, besides other real estate of which the executor has possession, and presumably is receiving rents and profits therefrom. Tinder these circum"Stances we shall not hold the executor entitled to the possession as against the devisee. By the Court. — Judgment affirmed.