Head v. Sutton

*619 The opinion of the court was delivered by Horton, C. J.:

It is alleged that the conclusion of law reached by the court in this case is erroneous for two reasons, viz.: First, that the court found that said Head is chargeable in his representative capacity with $42.50, due from him to the estate before his appointment as administrator. Second, that the court found that the said Head is chargeable in his representative capacity with $116.85, which he collected from the rents and profits of the real estate of the intestate. There is no finding that Head prior to his appointment as administrator, had appropriated this $42.50 to his own use. On the other hand, the court specially finds that at the time of the appointment he actually had this money in his hands. His duty was to turn this money over to himself as administrator, and under the findings it is presumed he did so. He was required by the statute to make an inventory of everything belonging to the estate which had or might come into his hands, and to administer the same according to law. Therefore in his capacity as administrator he is chargeable with the amount received by him prior to his appointment as administrator.

It is said that if an executor de son tort obtains letters of administration, pendente lite, it legalizes his previous tortious acts. (1 Williams on Executors, 6th ed., pp. 304-310; Hill v. Curtis, L. R., 1 Eq. 90.) Generally the rule is, that letters of administration by operation of law make valid all acts of the administrator in settlement of the estate from the time of the death. They become by relation lawful acts of administration for which he must account. (Alvord v. Marsh, 12 Allen, 603 ; Hatch v. Proctor, 102 Mass. 351 ; Rattoon v. Overacker, 8 Johns. 126; Matter of Falkner, 7 Hill, 182 . See Brown v. The State, 23 Kas. 235 .)

The real estate of the intestate descended at once to his heirs, and the title thereof was vested in them subject only to the right of the administrator to sell the same for the payment of the debts in the manner prescribed by law. (Read *620 ing v. Wier, 29 Kas. 429 .) So the title to the real estate, which the heirs took by descent, entitled them to the possession of it, and they had the right to receive, as against the administrator, all the rents and profits thereof. The administrator was not authorized either to take possession of the real estate of the intestate, or to collect the rents and profits. It appears from the findings that “the administrator took possession of the real estate supposing, and the heirs supposing, it was his duty to do so, and as such administrator, received the rents and profits therefrom.” It does not appear from the findings, however1, that the administrator charged himself with the rents, in his representative capacity, or that he brought the rents into his account with the estate, or that he made them the subject of a decree of the probate court, or that the estate had the use thereof, or received any benefit therefrom. On the other hand, the express finding of the trial court is, “that on a full settlement of the accounts of Head for the rents and profits of the real estate, after allowing him a reasonable compensation for services, credits, etc., there remains in his hands, belonging to the heirs, the sum of $116.85.” As the administrator was not required by law to take possession of or account for the rents and profits as a part of the estate, and as in doing what he did concerning that matter he was, in law, not acting in a fiduciary or representative character, although he and the heirs seemed to think he was, he is not liable to account, as administrator, to the estate therefor. The law is thus stated by Schouler, in § 213 of his treatise on Executors and Administrators:

“It follows generally that if a representative takes possession of the real estate of the deceased he is accountable to the heirs as their agent, and not, strictly speaking, to the probate court in his official capacity, though for convenience he will often manage by consent of the heirs.”

(McCoy v. Scott, 2 Rawle, 222 ; Lucy v. Lucy, 55 N. H. 9; Rodman v. Rodman, 54 Ind. 444 ; Hankin v. Kimball, 57 id. 42; Newcomb v. Stebbins, 9 Met. 540 .) See also the following authorities, to the effect that if an administrator receives *621 the rents and profits of real estate the sureties on his bond are not liable therefor: Gregg v. Currier, 36 N. H. 200; Perkins v. Perkins, 46 id. 110; Hutcherson v. Pigg, 8 Gratt. 220 .

We are cited to some cases where the administrator is held to be estopped from denying that the rents collected or property received were assets of the estate. In these cases however the administrator had not only received and receipted for the money or property as administrator, but had charged himself with it as administrator in his accounts, as in Wilson v. Wilson, 17 Ohio St. 150 ; or the administrator had appropriated the rents collected by him to the payment of the debts due from his estate, as in Conger v. Atwood, 28 Ohio St. 134 ; or the estate had received the benefit of the proceeds of the property wrongfully taken, as in Simpson v. Snider, 54 Iowa, 557 .

In the case at bar the rents have not been applied to the payment of the debts of the estate, have not been used for the benefit of the estate, and the administrator has not charged himself with them in his final account.

Counsel for defendants in error suggest that there are omissions in the record, and therefore the judgment must stand. Not so. The conclusion of law is based upon the findings of fact of the trial court, and if the findings do not sustain the conclusion of law it is erroneous. (Shoup v. Rld. Co., 24 Kas. 547 .)

We perceive no error prejudicial to the administrator in the taxation of costs. The appeal was properly taken by parties aggrieved, and the estate recovers judgment.

The judgment of the district court will be modified to the extent of deducting therefrom the sum of $116.85. In all Other respects it will be affirmed.

Brewer, J., concurring.