This case certainly presents a question of some difficulty. Oliver Page died seized of real estate, leaving one daughter his heir at law. His estate was represented insolvent, and it is conceded, proved to be deeply insolvent; so that the whole of his property, including the proceeds of all his real estate, to be sold by his administrator, under license, was insufficient to pay his debts. After the death of the intestate, and before his administrator had obtained license to sell the real estate, the respondents filed their location, by which a part of said real estate was taken for the railroad. The question is, whether the heir or the administrator has the right to claim and receive the damages for the land thus taken.
No act of legislation has provided for this case, and there is no judicial decision in point. The argument for the administrator carries with it a strong semblance of equity. The policy of the law certainly is, to make a deceased debtor’s real estate liable for the payment of debts, and the heir takes his inheritance subject to that liability, so far as it is created by law. But the same law, which has declared this liability *469of real estate for the payment of debts, has prescribed the mode, and the only mode, in which it shall be carried into effect, and that is, by a sale under a license. The heir then takes the estate according to the well-known rule of inheritance, at the time of the decease of the ancestor, subject only to be divested by a sale, pursuant to law, conducted in the manner prescribed by statute. All the legal consequences of this relation are held to follow. The heir is the owner till he is divested; he has the exclusive possession and right of possession ; he may take the rents and profits to his own use, and without account. The administrator has no interest or estate, and until a recent statute, not affecting the question, he had no right of entry or action in or to the estate, before license obtained. He had no claim to the rents and profits, and his sale, when made, took effect from the time it was made, and did not relate back to the decease of the ancestor. These are familiar principles, which do not need the citation of authorities for their support.
The right to damages for land taken for public use accrues, and takes effect, at the time pf taking, though it may be ascertained and declared afterwards. That time, in the case of railroads, prima facie, and in the absence of other proof, is the time of the filing of the location. See Charlestown Branch Railroad v. Middlesex, 7 Met. 78, and Davidson v. Boston & Maine Railroad, 3 Cush. 91, 106.
In the present case, the heir at law being seized and possessed of the estate taken, at the time of the taking, subject only to be defeated by a sale, not then made, or authorized and licensed by the competent authority to be made, the court are of opinion,' that she was the owner within the meaning of Rev. Sts. c. 39, §§ 55, 56, and entitled to the damages, to be recovered of the respondents for such land; and of course that the administrator was not so entitled.
Judgment of the court of common pleas rejecting the verdict for the administrator affirmed.