"Upon the whole, we think there is no difficulty in sustaining the suit, upon the ground of want of title in the plaintiffs. The premises belonged to them, as heirs of their father; and, in the absence of its appearing that they were wanted for the payment of his debts, it is to be taken that they were not wanted. The plaintiffs were in possession of the premises as heirs, and, without claim from any one, rented the same to the defendant, who, it would seem, is not in a position to dispute their title." Plumer v. Plumer, 30 N.H. 567. *Page 371
In Leavitt v. Leavitt, 47 N.H. 329, the husband in his lifetime had made a voluntary conveyance to his wife, who was the plaintiff; and the defendant, who was in possession, amongst other defences, claimed that he was executor of his father's will, that the estate was decreed to be settled in the insolvent course, and that the personal property was not sufficient to pay the debts. It was held that this did not entitle him to hold the possession. BELLOWS, J., in his opinion, speaking of the law in regard to the settlement of insolvent estates, says, — "The provisions of that law are, that the administrator shall receive the rents and profits of the real estate, in case the estate is insolvent; but the proof offered is not that the estate is actually insolvent, or even that any part of the land in question is needed to pay the debts, but simply that the personal estate was insufficient.
"For some purposes, the decree of insolvency is conclusive as it would be in determining the mode of proving claims against the estate. Judge of Probate v. Brooks, 5 N.H. 82; Ticknor v. Harris, 14 N.H. 272. In other cases it has been held not conclusive, as in Plumer v. Plumer, 30 N.H. 558, where it was decided that where an estate was settled in the insolvent course, but was actually solvent, and the real estate not needed to pay the debts, the heir might maintain an action for an injury to the realty or its incidents; — in this case the recovery was for the taking of manure." Leavitt v. Leavitt, 47 N.H. 334.
In Baker v. Haskell, 48 N.H. 426, it was held that one heir may maintain an action against another heir to recover damages for his exclusion from the realty during the time the ancestor's estate was in process of administration in the insolvent course, if the administrator never had possession of the realty, and the debts have all been paid by the sale of other property, and the administrator's account has been settled.
In his opinion, SMITH, J., says, — "The object of the legislation, entitling the administrator to receive the rents and empowering him to bring suits respecting the realty, was, to protect the rights of creditors, not to harass the heirs, or allow them none but dilatory or expensive remedies; and, under the circumstances of the case the spirit of the statute is not violated by allowing the plaintiff to recover directly the rents, which, it is apparent, are not needed for the payment of debts, for which purpose they originally constituted a reserve fund." Baker v. Haskell, 48 N.H. 428.
In Goodwin v. Milton, 25 N.H. 458, the head note is, — "Where land belonging to an insolvent estate is taken for a highway, an award of damages is properly made to the administrator of the estate, and not to the heirs." But, in the opinion by EASTMEN, J., the case is put upon the broad ground that on the estate being decreed to be administered as an insolvent one, the presumption of law is that it is insolvent, and that there is not sufficient property belonging to the same to pay the debts. It does not appear from the case whether the estate was actually insolvent or not; but the decision is put upon the broad ground that it is immaterial. *Page 372
In Plumer v. Plumer, above cited, the dictum is that in the absence of proof that they (i. e., the premises in dispute) were wanted for the payment of debts, it is to be taken (i. e., the presumption is) that they were not wanted. It is true that these remarks are to be taken with reference to the subject-matter; but it is equally true that the presumption of law cannot be both ways.
I have thus brought together some of the most noticeable utterances of the court in regard to this matter. Each one, of course, is to be taken in connection with the circumstances to which it is applied; but I confess it seems to me that, in any way in which they can be viewed, they do by no means come up to the doctrine that the mere fact that an estate is decreed to be settled as insolvent shall be held to control the legislation on that subject, and furnish a conclusive presumption that the estate is insolvent, and that all the real estate must, without reference to the necessities of the case, be taken from the heirs or devisees, and pass into the hands of the administrator to be managed at the expense of the heirs, who ought, themselves, to have the management and care of it and enjoy its profits. I think there can be no general and overruling necessity which requires such a forced construction.
Still less does it follow that the mere fact than an estate is decreed to be settled as insolvent should be held sufficient to authorize the administrator to involve the estate in the expense of lawsuits at his discretion.
According to the theory of Goodwin v. Milton, a lawsuit of comparatively insignificant importance might keep the estate for a long time in the hands of the administrator.
Perhaps it would not be an unreasonable conclusion, from the cases cited, that the decree that an estate should be settled as insolvent should be held to furnish a presumption of fact, — i. e., prima facie evidence that it was insolvent, — and that this presumption might be rebutted. If this be so, the plaintiff in this case stood well enough until this presumption had been destroyed; and for this reason I think the nonsuit cannot stand.