In Bergin v. McFarland, BELL, J., after stating that at common law the estate vested at once in the heirs, and that all which the administrators and executors could do with real estate was to sell by license for the payment of debts, and that until the estate *Page 369 was thus taken from them, the heirs had a right to the possession of the property, proceeds as follows: "An important change was made in these respects by the statute of 1829, substantially reenacted in the Revised Statutes. It is there provided that the administrator shall receive the rents and profits of the real estate in case the estate is insolvent, and shall keep the same in repair, and shall account for the net proceeds thereof in his administration account — ch. 159, sec. 10; and the administrator may, as such, maintain any action necessary and proper to be brought, in relation to the real estate of the deceased, in cases of insolvency, until the administration is closed — ch. 161, sec. 9."26 N.H. 537.
By the statute of July 2, 1822, Laws of 1830, p. 359, provision was made for the settlement of insolvent estates, "when the estate of any person deceased shall appear to the executor or administrator thereof to be insolvent, and shall be so represented to the judge of probate, and be decreed by him to be administered upon as an insolvent estate," c.
By the statute of 1829, it is enacted that "It shall be the duty of every executor or administrator of every estate which shall be hereafter administered upon as an insolvent estate, and he is hereby authorized and required, to keep in repair and receive the rents and profits of any real estate in this state which may belong to such testator or intestate at the time of his decease." Laws of 1830, p. 370. By Rev. Stats., ch. 162, sec. 1, it is provided that the estate of any person deceased may be decreed to be administered as an insolvent estate.
By Rev. Stats., ch. 159, sec. 10, "The administrator shall receive the rents and profits of the real estate in case the estate is insolvent, and shall keep the same in repair, and shall account for the net proceeds thereof in his administration account."
It thus appears that the settlement of estates in what is called "the insolvent course" had been provided for by statute before it was made the duty of the administrator to have possession of the real estate and take the rents and profits. The term "insolvent course" was used to describe the proceedings by which the debts were proved, the dividend declared and allowed, and, generally, the closing up of the affairs of the estate. The provision that the administrator should take the rents and profits, c., was a separate matter, and introduced afterwards.
Under these statutes, as no estate was to be settled as insolvent excepting on the representation of the administrator that it appeared to him to be insolvent, it might well be presumed, on the decree of the judge of probate having been made, that the estate was insolvent, and no inconvenience or hardship need have been apprehended by so treating it.
When, however, it was provided by the Revised Statutes that any estate, however large it might be, and however otherwise situated, might be decreed to be settled as insolvent, the terms employed were *Page 370 different. Instead of providing that the administrator shall take the rents and profits when the estate is decreed to be settled as insolvent, it was provided that the administrator might do this when the estate was insolvent.
It seems impossible that this change should have been accidental. When the statute contemplated that no estate should be settled as insolvent unless there was reason to believe that it was so, it was natural that the same terms should be used in regard to the administrator's possession of the real estate; but when it was provided that all estates might be settled in the insolvent course, the administrator's right to the possession of the real estate was limited to the cases where the estate was insolvent.
This seems so clear, when the different statutes are compared and the history of the legislation attended to, that it seems strange that it should ever have been lost sight of.
I understand, however, that for the convenience of adjusting claims against estates and relieving the administrator from responsibility, a loose practice had prevailed, before the time of the Revised Statutes, of representing estates insolvent by administrators who knew they were not so, and of decreeing them to be settled as such by judges of probate without any proof that they were so; and out of this custom grew the other, — of presuming estates to be insolvent when they were settled as such, although they were known not to be so.
But under the provisions of the Revised Statutes, substantially reenacted in the General Statutes, it is difficult for me to see how the mere decree that the estate shall be settled in the insolvent course should have the effect of ousting the heirs, and entitling the administrator to the possession of the real estate; and I cannot help thinking that the change in the terms of the law, by which the administrator was required to take the rents and profits, was made deliberately, and with the intention of preventing such result. The matter, however, does not appear to have been a subject of much discussion, nor of any direct decision by the court.
In Plumer v. Plumer, 30 N.H. 568, it was held that the fact that a solvent estate is settled in the insolvent course does not solvent an heir from maintaining an action for injury to the realty, or for incidents removed therefrom, if it appear that the real estate is not required for the payment of debts or the expenses of administration.