Brooks v. Jackson

125 Mass. 307, 1878 Mass. LEXIS 62

• Court: Massachusetts Supreme Judicial Court
• Decided: August 31, 1878
• Status: Published

Opinion

Gray, C. J.

In the absence of special devise or contract, the rents and profits of the real estate of a deceased person belong to his heirs or devisees, and not to his administrator or executor, even if the estate is insolvent, unless and until the real estate is sold for the payment of debts, under a power expressed in the will or by license of court; and if the executor or administrator receives such rents, the heirs or devisees may recover them from him in an action at law. Gibson v. Farley, 16 Mass. 280.

It has been provided by statute, that if the executor or administrator uses or occupies any part of the real estate, he shall account for the income thereof as ordered by the Probate Court, with his assent and the assent of such other parties interested aa are present at the rendering of the account; and that, if the parties do not agree, the sum to he allowed shall be determined by commissioners appointed by that court. Gen. Sts. c. 98, § 8. Rev. Sts. c. 67, § 6. St. 1789, e. 11, § 2.

This provision has always been construed as applying as well to rents received by the executor or administrator, as to the use of real estate occupied by him in person; and we can have no doubt that it extends to his occupation or receipt of rents from the time of the death, to which his appointment relates. It requires him to account for rents and profits received or enjoyed by him to none but those to whom they belong; and if he is himself the heir or devisee, he is not obliged to account for them at all. When he is not himself heir or devisee, he is required by the statute to account for them in the Probate Court, but to the heirs or devisees only, unless they, either expressly, or by implication from assenting to his accounts in which he has charged himself with rents as part of the general assets, have agreed that they shall be applied to the payment of debts, legacies and expenses of administration, in which case he is chargeable accordingly. Stearns v. Stearns, 1 Pick. 157. Newcomb v. Stebbins, 9 Met. 540, 544. Palmer v. Palmer, 13 Gray, 326, 328. Alden v. Stebbins, 99 Mass. 616. Almy v. Crapo, 100 Mass. 218. Towle v. Swasey, 106 Mass. 100. Choate v. Arrington, 116 Mass. 552.

The provision in the will, by which the testatrix charged and bound her real estate, and authorized her executor to sell it, had no other force than to create a lien upon the estate, and a power to sell it to satisfy that lien. It did not affect the right of heirs or devisees in the rents until the power was executed by a sale. Newcomb v. Stebbins, above cited. Lobdell v. Hayes, 12 Gray, 236.

The rents' received by Jackson in this case, from the time of the death of the testatrix to the time of his own removal from the office of executor, and which he was required by the statute to account for in the Probate Court, either to the heirs or devisees, or as part of the general assets, were goods not administered, which the administrator, with the will annexed, was entitled to receive from him; and the executor’s failure t,o account for and pay over the same was a breach of his bond, for which he and his sureties are liable. But the rents collected by him since his removal were not received by him as executor, or in any sense to be accounted for as such, and for them he cannot be charged in this action.

There is nothing in the case to show that the judge before vhom the hearing was had erred in disallowing compensation to Jackson for his services as executor.

Pursuant to the terms of the report, the case is to be referred to a master to compute, according to the rules stated in this opinion, the amount for which Execution shall issue.