Brigham v. Elwell

W. Allen, J.

The jury found that the hay and cider were produced by the plaintiffs from the farm while they carried it on as executors, under an arrangement with the devisee that they should carry it on and take the proceeds and account for them as assets. Income of the real estate of a testator so received by his executor is assets of his estate. Pub. Sts. a. 144, § 5. Stearns v. Stearns, 1 Pick. 157 . Palmer v. Palmer, 13 Gray, 326 . Choate v. Arrington, 116 Mass. 552 . Choate v. Jacobs, 136 Mass. 297 . Edwards v. Ela, 5 Allen, 87 . Brooks v. Jackson, 125 Mass. 307 . Adams v. Palmer, 6 Gray, 338 . Newcomb v. Stebbins, 9 Met. 540 . Almy v. Crapo, 100 Mass. 218 . Towle v. Swasey, 106 Mass. 100 . The direct question is, whether the property in the hay and cider was in the plaintiffs as executors, and that -involves two questions: whether the fact that one of the executors was also the sole devisee of the land prevented the executors from occupying it for the benefit of the estate, with the assent of the devisee, so as to be chargeable with the income; and whether, if they did so occupy the farm, its produce, while it was carried on by the executors, belonged to them in their representative, and not in their personal capacity.

1. The presumption that a devisee of land who enters upon it enters under his title as devisee may be overthrown. He may *523 enter under another title, and occupy in another character than that of devisee. If he is also sole executor, it would seem that he would have the power to occupy as executor, for the benefit of the estate. What would constitute or prove such an occupancy, so as to make the rents and profits assets, is a very different question from that of the power so to occupy. In Newcomb v. Stebbins, ubi supra, it was held that taking notes for rent to himself as executor did not of itself make them assets, and estop him to show in what capacity he occupied; but it would seem that charging himself with the rents and profits in his account would show that he received and held them as assets. The fact that the sole executor and 'devisee occupied as executor, and not as devisee, may be difficult of proof, but it is not impossible. But when the devisee is also one of two executors there is no difficulty. Whether the two occupied the real estate and took the rents and profits, is a question of fact easily susceptible of proof. Whether the devisee assented to their occupancy as executors, for the benefit of their estate, is also a question of fact. The fact that he is the devisee of the land does not take from him his capacity to assent to the occupancy by the executors, or to occupy with his co-executor. There is no question of contract, or of estate in the land. The rents and profits come from the actual occupancy by the executors, and the assent to such occupancy by the devisee prevents him from claiming them, and leaves them assets of the estate. The jury have found that the executors carried on the farm for the purpose of taking the proceeds and accounting for them as assets. The assent of the devisee is not left to be implied from the fact that he was one of the executors who so occupied, but it is found that it was expressly given; the executors are therefore bound to account for the income as assets.

2. As Brigham and Curtis carried on the farm jointly, the products in question — hay and cider made by them from the produce of the farm —belonged to both of them, and not to either one alone. To maintain this action they must show that it belonged to the estate of their testator, that is, that it belonged to them in their representative, and not in their personal capacity. The statute is, “ If the real estate has been used or occupied by an executor or administrator, he shall account for *524 the income thereof as ordered by the Probate Court.” Pub. Sts. c. 144, § 5. The St. of 1789, c. 11, § 2, read as follows : “ When a dispute shall arise respecting the occupation, use, and improvement of real estate in the hands of the executor or administrator, and the quantum he ought to credit in his account therefor,” &c. An executor can account for the income of real estate which he has occupied by charging himself with a proper sum as rents and profits, or by charging himself with the net receipts and products from it, and the statute includes either mode of accounting. An executor may himself use the real estate, living in the house or carrying on the farm for his own use, as if a tenant, in which case he would account for the income by charging himself with the use and occupation; or he may occupy it as a bailiff, collecting rents from tenants, or carrying on the farm for the estate, in which case he would account for the income by charging himself with the rents and products received. In the former case, the produce of the farm would belong to him personally; in the latter, it would belong to him as executor. Whether a particular occupancy is of the one character or the other is an inference from the particular facts affecting it. In this case it is found as a fact, that the farm was carried on for the estate of the testator, and with the intent and purpose that the proceeds should belong to the estate. The evidence shows that the particular reason for doing this was to benefit the personal property of the estate, to increase the value of the stock upon the farm by keeping it upon the produce of the farm, for a better market. It is inconsistent with this to regard the produce of the farm as belonging to the executors personally, to be removed from the farm by them or their creditors at pleasure. The conversion by the defendant was in the month of January ; the property converted was products of the farm remaining upon it, which had been produced and were held by the plaintiffs as executors. If on that day they had vacated their office, and an administrator had been appointed in their place, we cannot doubt that the property in such products of the farm, as well as in the stock upon it held by them as executors, would have passed to the administrator. They had then rendered no account. It does not appear when or in what form their account was afterwards rendered; but it is to be presumed that their *525 account when rendered would conform to the facts, like the accounts in Edwards v. Ela, ubi supra, and would charge them with the specific property as assets of the estate. It does not appear that they have not already done so.

Upon the facts found by the jury, and assumed to be true, the inference of law is, that the property converted belonged to the plaintiffs as executors. Exceptions overruled.