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are considered as personal property and go to the representatives. So are fixtures annexed to the land or buildings, for purpose of trade or manufacture; but all other fixtures pass with the land to the heir or devisee. Every kind of property raised annually by labor and cultivation properly goes to the executors or administrators, but growing grass, fruit ungathered and trees which are of spontaneous growth, accompany the land into the ownership of the heir. Of course, if they are severed from the land before the decedent's death, they become personal property and go to the executor or administrator.
Rents from real property which became due and payable prior to the death of the deceased, like every other personal debt, go to the representative. But rents thereafter accruing pass to the heir or devisee, unless the will directs the land to be sold by the executor, in which event, the land is deemed to be personal property, and the executor is entitled to the rents. A mere naked power of sale, however, unaccompanied by any active trust duties, will not have that effect.
As to the land itself, unless it be devised to the executor or trustee upon an express trust to collect and apply the rents and profits (see ante § 26), he has not the legal title, but the same descends to the heir or devisee, who alone is entitled to possession. Thus, where a will gives the executor a mere power to sell the land and directs the proceeds to be paid to a specified person, the executor takes no title, but the beneficiary may elect to take the land freed from the power of sale.
An administrator has no authority whatever over real property, and owes no duty to take charge of it or protect it, nor may he collect the rents.
If any land belonging to the decedent is sold upon foreclosure of a mortgage, and any surplus money remains after satisfying the mortgage, it continues to be real property and goes to the heir. Conversely, if the executor forecloses a mortgage owned by the decedent and buys in the mortgaged land upon the sale, such land is deemed to be personal property and goes to the executor.
92. To what extent representatives subject to
control of probate court. It may be stated generally that probate courts, and in some instances, courts of equity, have supervision and control over executors, administrators and trustees with respect to the management of the property belonging to the estate. But they may not interfere with the representative so long as he is engaged in the proper discharge of his official duties, and especially is this so when the matter in question involves the exercise of personal discretion conferred upon him by the will. The exercise of such discretion is, of course, subject to review by the court, for the purpose of determining whether it was so exercised honestly. But where it has not been abused and the acts of the executor are consistent with good faith, the court has no power to overrule the decision of the representative for errors of judgment. It is very doubtful, too, whether the court may entertain an application by a representative or trustee for advice and instruction in any matter, in advance of action thereon. It was never intended that such courts should act as legal advisers to anyone upon matters which might afterwards come before them for judicial determination.
There is, however, one instance at least in which the court has undoubted authority to direct and control the conduct of the representatives, namely, where there is a disagreement between them respecting the custody of the money or property belonging to the estate. In such case, the probate court, upon the application of either of them, or of any other person interested in the estate, may make an order directing the deposit of the money or property in some bank or other safe place subject to their joint order. But this would not be done where the one having possession of the property is also a life-tenant, having the right to the personal use and enjoyment of the income.
93. Reducing estate to possession.
When the executor or administrator has qualified by filing his oath or bond, as the case may be, and the title has vested in him, it becomes his duty to collect and take possession of all property of the deceased which he is called upon to administer. This property will usually be found to be invested in all sorts of ways and in many different localities, as may be realized from what was said when we were discussing the quality of the representatives' title. Frequently the property may be in the possession of hostile persons, who resist the claims of the estate on one ground or another; and again, persons may be suspected of concealing or withholding assets under claim of adverse ownership or otherwise.
To meet all such contingencies confronting the representatives the law furnishes them with ample means of relief. They may maintain any action or proceeding, in law or equity, which may be necessary for the recovery of the property, and may continue any action which may have been brought by the decedent in his lifetime, provided the cause of action upon which it was instituted
is one which survives the death of the deceased. The matter of the conduct of such actions involves questions of court procedure, with which it is our desire not to confuse the reader.
The remedy with respect to property concealed or withheld, is to be pursued in the probate, or surrogate's court, only. It is summary in its character and has a twofold object; first, to gain information concerning property, which the representative must include in his inventory, and second, to recover possession of property unlawfully withheld. But the court cannot try any disputes as to title, and if the ownership of the property is denied, no order affecting the person in possession can be made, unless it appears from the evidence produced that his claim of title is clearly unfounded. The remedy is not intended as a means of collecting debts, nor of taking the place of ordinary actions for the enforcement of civil rights.
94. Same; foreign assets.
Personal property belonging to a deceased resident of one state, but physically located in another, belongs to the representative appointed at the decedent's domicile, and should be collected by him, subject only to the right of the foreign state, through its local administrator, to impound