In Flood v. Pilgrim, 32 Wis., 376 (which was a case very similar to this in its facts), it was found difficult to understand why an administrator was appointed. We encounter the same difficulty in this case. The title to the land of which the intestate died seized, passed at his death to his heirs; and all his personal property has been appropriated to the payment of his debts and the maintenance of his family. It is not claimed that there are any unpaid debts chargeable upon the estate, or that the estate owns any claim except that for which this action was brought. It is not claimed that there is any balance in the hands of the appellant which she received as administratrix; and if there is any such balance in her hands, it can be collected by suit on her bond without the circumlocution of further administration. In short, it is not claimed that there is any estate to be administered except the demand for use and occupation of the land from the time the defendant’s authority as administratrix was extinguished by her marriage, in 1872.
Conceding, however, that there is an estate to be administered, and that the plaintiff was properly appointed administrator de ionis non, the fact remains that he has never taken possession of or had any control over the land for the use of which he seeks to recover. The question is, therefore, whether he can recover under these circumstances. We think this question must be answered in the negative.
Whatever power the administrator may have to take actual possession of the land of which his intestate died seized, it is not his duty to do so unless the rents and profits thereof are needed in the settlement of the estate; and until he does take possession, the heir may maintain ejectment for the land, although the estate has not been settled and distributed by judgment of the probate court. It was so held, after much deliberation, in Jones v. Billstein, 28 Wis., 221. Moreover, the *472administrator is only chargeable with such rents and profits while the land remains in his possession. R. S. 1858, ch. 102, sec. 7 (Tay. Stats., 1239, § 7). There has been no time since July 4, 1872, that the heirs of Spencer E. Carrier could not have maintained ejectment for the land in question, or for their share of it. Had they brought ejectment therefor, they would have recovered under the statute (E. S.-1858, ch. 141, sec. 13) the same rents which the plaintiff has recovered in this action, unless their right to recover the same is barred by N. S. 1858, ch. 89, sec. 12. We do not find it necessary to determine the effect of that statute. It is manifest, however, that if it bars the right of the heirs to recover rent, it must necessarily bar the administrator also, when, as in this case, he seeks to recover the rent for the benefit of the heirs alone.
In Flood v. Pilgrim, supra, it was held, under similar circumstances, that the administrator could not maintain ejectment, but only the heir or devisee. It seems to result from the judgment in that case, that if the administrator has not taken possession of the land, if the rent of it is not needed in the settlement of the estate; and if there is nothing in his relations to the occupant analogous to the relation of landlord and tenant, he can not maintain an action for use and occupation.
We have been refei’red to no case in which an administrator has recovered for use and occupation under like circumstances, and we doubt if one can be found in the books. We think that this case is ruled by Jones v. Billstein and Flood v. Pilgrim, supra, and that the plaintiff sustains no relation either to the land or occupant, which entitles him to maintain this action.
By the Court. — The judgment of the circuit court is reversed, and the cause remanded for a new trial.
RyaN, C. J., took no part.