Beezley v. Burgett

Wright, J.

It is not pretended, of course, that, at common law, tbe plaintiff could maintain tbe action. Indeed, the proceeding is so anomalous that we have been most reluctant to sustain it We know that at common *193 law the administrator succeeds to the personal estate, and that the real estate, if not otherwise disposed of by will, descends to the heirs; that the administrator has no right to recover the .rents and profits accruing after the death of the intestate; and that, as a rule under the statute, it is only when it is necessary to procure the payment of debts that he can exercise any control over the real property. Lepage et al. v. McNamara, 5 Iowa, 124 ; 6 Id., 130 ; 9 Id., 267 .

But the statute, as we read it, recognizes the remedy in this form, and there being' no suggestion of its invalidity, we, of course, must follow the enactment. By § 3954 it is provided, that “the legal representative of a person who might have been plaintiff if alive may bring this suit after his death.” The right of the heir to bring the action, without the aid of the statute, is unquestionable. This section was intended, as we suppose, to confer a power on a party not before possessing it. Who is this “legal representative,” then? We understand it to mean the executor or administrator. This is certainly the meaning according to approved usage; and if treated as a phrase which has acquired a peculiar and appropriate meaning in law, the proposition is equally clear. Rev., ch. 2, § 29; 2 Bouv. L. D., Tit. Representative.

When it is held, in Jameson v. Smith's Ex., 4 Bibb, 307 , that a suit for land cannot be revived in the name of an executor, although the will may give him the right to sell and convey land, and in Wright v. Williams, 5 Cow., 501 , that the executor cannot distrain for rent which accrues after the testator’s death, and that such rent goes to the heirs, there is no more than a recognition of the rule of the common law. In those States where there is no. such statute as in ours, of course this action would have to be brought by the heir. And yet we may be permitted to say that the statute, though anomalous, is convenient in its operation, *194 and in accordance with, the purpose and object of the action itself. Instead of waiting to determine who are the heirs (a question frequently of much difficulty), the remedy is given at once to the representative or administrator. The title cannot be investigated in the action (§ 3961); it is simply a question of possession, and for this reason the statute contemplates a speedy remedy. If the plaintiff shall succeed, he acquires no permanent right thereby, but holds the possession representatively merely. This possession, when acquired, becomes at once that of the heirs, or, if he should continue it nominally, he is but their trustee or agent, and does not thereby become vested with the right to control the real property, nor the accruing rents and profits.

Affirmed.