Carpenter v. Fopper

68 N.W. 874, 94 Wis. 146, 1896 Wisc. LEXIS 151

• Court: Wisconsin Supreme Court
• Decided: October 13, 1896
• Status: Published

Opinion

Newman, J.

The demurrer ore terms raises tbe question whether the complaint states a cause of action in favor of the plaintiff. No doubt the interest which plaintiff’s decedent had in these lands is “lands” and “real estate” within the statute definition. E. S. sec. 4971, subd. 9. These lands, on the death of the • intestate, descended at once, by operation of law, to her children. E. S. sec. 2270, subd. 1. At the common law, and in the absence of a statute, the administrator has no right to the possession, even, of the real estate. Under the statute (E. S. sec. 3823) he has no right to the possession unless there are claims against the estate unpaid. McManany v. Sheridan, 81 Wis. 538. Having neither a title nor a right to the possession of the lands it is. difficult to apprehend what legal interest he can have in the specific performance of this contract. If performance is due, it is due to the heirs of the plaintiff’s decedent, and not to the plaintiff. He has no interest to be vindicated, either in the title or in the possession. He. does not represent the heirs. He is neither the real party in interest nor the trustee of an express trust in relation to these lands. He has no interest. The complaint does not show any cause of action in favor of the plaintiff. The demurrer was rightly sustained.

By the Court.— The judgment of the circuit court is affirmed. »