Stinson v. Stinson

Appleton, J.

— It appears in this case that James Stinson, on January 21, 1853, leased to John W. Yeazie, the shore of his farm for the term of ten years at an annual rent of three hundred and twenty dollars, payable on the first 'day of August of each year; that he deceased the March 'following the date of the lease; that the appellee, his widow, was duly appointed administratrix; that the lease and the income'therefrom was inventoried as personal property, and as such formed a part of the allowance made to the widow.

The question presented for determination is, whether or not the forthcoming rents belong to the heir or the administratrix.

The appellant, who is the heir at’law of James Stinson, is entitled to -the estate out of which the rent issues. But being entitled to the land, the right to the rent follows. “ The right of rent service is real property, and descendable to the person entitled to the reversion of the land out of which it issues.” 3 Cruise, 282. “If A seized in fee grant an estate tail, or a lease for life or years, reserving rent, such rent as accrues after his death being incident to the reversion, shall 'go'to the'heir, and not to his executors although they are named in the covenant”’ 'Toller on Executors, 116. The administrator or executor is entitled to rents accruing before the demise of the lessor, but cannot distrain for the same. Prescott v. Boucher, 3 B. & A. 839. “ Rents accruing after the decease,” says Putnam, J., in Gibson v. Farley, 16 Mass. 286 , “cannot be said to be the goods, chattels, rights or credits of the deceased. They are incident to the reversion.” The doctrine of Gibson v. Farley , was affirmed in this State. “If,” says Mellen, C. J., in Heald v. Heald, 5 Greenl. 387, “the estate is sol *595 vent, they, (the heirs,) are entitled to the estate itself and its income; if insolvent, the creditors are only entitled to the estate of which the intestate died seized, and not to the rents and profits after his death, for those belong to his heirs.” The effect of the decree below would be to convert the forthcoming rents of real estate into personal property and transfer them from the heir at law, to whom they descend, to the administratrix, to whom they do not belong, and who, if she had collected, would be held to account for them to the heir. According to the entire weight of authority, the rents belong to the heir, and should not have been included in the inventory.

The decree of the Judge of Probate, from which an appeal was taken, is reversed, and it is ordered and decreed that ten hundred and fifty-seven dollars be allowed the widow, and that the cause be remanded to the Probate Court.

Shepley, C. J., and Tenney, Howard and Hathaway, J. J., concurred.