
    Charlotte Gibson and Others, by their Guardian, versus Ebenezer Farley and Another.
    The heirs of one deceased insolvent are entitled to the rents and profits of the real estate of the deceased, until it is sold for the payment of his debts; or if it were mortgaged, until entry by the mortgagee.
    Case against the defendants, as bailiffs and receivers of the plaintiffs, and assumpsit for money had and received.
    At the trial, which was had upon the general issue, before the chiel justice, November term, 1819, it was proved or admitted that the plaintiffs were the children, and five out of nine of the heirs at law of Abraham, Gibson, late of Boston, deceased, intestate ; that the defendants were * administrators of the [ * 281 ] estate of the said deceased, appointed on the 15th of July, 1816 ; and that J. P. Cooke, Esq. was duly appointed the guardian of the plaintiffs, on the 29th of the same July.
    The said Abraham died seised of real estate, to a considerable amount, in Boston and elsewhere. A greater part of that situated .n Boston, and some in Cambridge, was under mortgage ; but the mortgagees did not enter for condition broken. At the time of the decease of the intestate, and when the letters of administration were granted, it was supposed that his estate was sufficient for the payment of all his debts. It was then deemed inexpedient to make partition of the real estate among the heirs, as part thereof would be wanted for the paymentof the debts; and before letters of guardianship had been issued, the defendants began to collect the rents of the estate, with the intention of accounting therefor according to law. They collected the rents of the mortgaged estates, until the sale of the equities of redemption thereof; and of those unencumbered, from the decease of the intestate in July, 1816, until March, 1818, when they ceased receiving the same, and the guardians of the heirs from that time received the rents, until the sale of the estates by the administrators for the payment of the debts of the deceased. A part of these sums was received from tenants, who were such at the time of the intestate’s decease, and who continued their occupation; and a part was from tenants who entered under contract with the administrators. A part of these, sums had been paid to the guardian of the plaintiffs for their use, under an express reservation that it should not prejudice the rights of either party ; and he might have received the whole proportion thereof, to which he supposed his wards entitled, on his giving the administrators a sufficient indemnity.
    The widow of the deceased had recovered her dower in that por tian of her husband’s estate which was situate in Boston, [ * 282 J in an action against the plaintiffs and the other * heirs, with damages for the detention, and costs, amounting to 1964 dollars.
    The defendants had settled two accounts as administrators, in the probate office, after the receipt of the said rents; in neither of which they charged themselves therewith ; nor had they'been required so to do by the judge of probate. But they had awaited the decision of the proper tribunal thereon.
    The estate of the deceased finally proved insolvent; and these rents, if credited to the estate, would not render it sufficient to pay all the claims proved and allowed against it by the commissioners of insolvency.
    The judge directed a nonsuit, in order to bring before the whole Court the question as to the right of the plaintiffs to recover the moneys so received as rents by the defendants. If the action was maintainable, the nonsuit was to be set aside, the defendants defaulted, and judgment rendered for the plaintiffs, for their proportion of the rents so received.
    
      Gorham and Cooke, for the plaintiffs.
    The rents arose partly from lands not mortgaged by the intestate, and partly from lands which he had mortgaged, but into which no entry had been made for condition broken. As to the first, the estates descended to the heirs immediately on the death, and the rents followed as incidents . The heirs being thus entitled by the common law, have our statutes made them chargeable for the debts of the deceased, and so entitled the administrators to them ? Until lately, administrators were not held to include the real estate of their intestates in the inventories  ; and if they sell it under a license from court, and waste the proceeds, they are not liable therefor on the administration bonds . In the case of Drinkwater vs. Drinkwater 
      , it is expressly said, that the administrator has no right to enter into the lands, or to take the profits. The only concern he has in them is derived from his obtaining.a license to * sell [ *283 ] them for the payment of the debts of the deceased; and is limited to a simple authority to sell . In Hays & Al., Exrs., vs. Jackson & Al. 
      , which treats of the marshaling of assets, the Court say, that the rents and profits of a descended estate, received after the testator’s death, cannot be come at by the executor, so as to be assets in his hands; plainly because they have been received by, and belonged to the heirs. A writ of dower lies only against him who is seised of an estate of freehold, or inheritance in the land . The plaintiffs have accordingly been obliged to respond to the widow of the deceased for her dower; and one third of the rents of the estate in their hands has been awarded to her, as damages for the detention thereof.
    The law is the same as to the estates mortgaged, until entry by the mortgagees. The heirs only could legally demand the rents; and they alone could maintain 'a suit for redemption . The mortgagor is seised in fact against all the world but the mortgagee .
    If the defendants are permitted to retain these rents, they will hold them for their own use. They cannot be required to account for them, for the benefit of the creditors of the estate, either by virtue of the original bond for faithful administration, or of that which they executed on obtaining license to sell the real estate ; and the only remedy, provided for the creditors, is on those bonds.
    
      W. Sullivan and Aylwin, for the defendants.
    The question in this case is, in effect, between the creditors of an insolvent estate, and the children of the deceased. The policy of our laws is to favor the creditors of a deceased person, rather than his heirs ; and herein it but follows the axiom in morals, that a man must be just, before he is generous. The object of the present action is to take money justly belonging to the creditors of the intestate, and to put it in the pockets of his children ; and thus to make him, by a kind of posthumous fraud, guilty of an immorality in his grave. [ * 284 ] * The lands of which a debtor dies seised are by law liable for the payment of his debts ; and they being the principal, the rents, accruing after his decease, which are but incidents, ought in all justice to follow. When the sheriff executes a writ of levari facias, he takes the rents which are in arrear from the tenant of the land .
    The true doctrine, which should govern this case, is laid down in Hays Al. vs. Jackson & Al., which has been cited ; and it goes to the whole extent of the claim of the defendants. If the plaintiffs had received the rents in question, by the rules given in that case the defendants could have maintained an action, and recovered them for the benefit of the creditors.
    Chancery will always compel heirs, who have received rents, to pay them over for the use of creditors .
    By the statute of 1789, c. 11, § 2, provision is made for adjusting disputes respecting the sum that an administrator shall be held to credit in his account for the occupation of the real estate of the testator, when in his hands, plainly intending that the rents of such estate shall be brought into the account for the benefit of creditors or others entitled. And it is well known to be the practice of the country for executors and administrators to collect and account for such rents.
    Creditors cannot bring actions within a year from the granting of administration. There is no equity, that the heirs should interpose, under favor of a mere technical principle, and take what in good conscience ought to go to the creditors.
    
      
      
        Co. Lit. 47 a—2 Salk. 578, Dyer, 361, Toller, 177. —2 Forth. 403.
    
    
      
       1 Mass. Rep. 35, Henshaw, J., vs. Blood & Al. —11 Mass. Rep. 192, Freeman, J., vs. Anderson Al.
      
    
    
      
      
        Ibid. 204, Prescott, J., vs. Tarbell.
      
    
    
      
       4 Mass. Rep. 358.
    
    
      
       5 Mass. Rep. 240, Willard vs. Nason.
      
    
    
      
       6 Mass. Rep. 154.
    
    
      
       12 Mass. Rep. 485, Parker vs. Murphy.
      
    
    
      
       9 Mass. Rep. 422, Smith vs. Manning.
      
    
    
      
       13 Mass. Rep. 229, Bolton vs. Ballard. —15 Mass. Rep. 279, Snow vs. Stevenes. See, also, 11 Johns. 534. —7 Johns. 278. —1 Johns. 580. —15 Johns. 319. —6 Johns. 290
    
    
      
      
        Plowd. 441. —Finch L. 471.
    
    
      
       1 P. Will. 678. -3 P. Will. 358. -2 Burr. 1031. —1 Atk. 421. —2 Atk. 204. —1 Vern. 37, note 1 —2 Bro. Ch. Ca. 259. in notis. —8 Ves. jun. 295. —2 Atk. 424, 439. —1 Atk. 60. —2 Atk. 294. -2 Vern. 61. —2 P. Will. 665.
    
   Putnam, J.

The general question to be setted in this case is, whether the rents of the real estate of one who has deceased insolvent, belong to the executor or administrator for the benefit of the creditors, or to the heirs at law of the deceased. If to Ine latter, the plaintiffs are to recover in this action.

The defendants contend that they are entitled, inasmuch as the real estates of persons deceased are subjected * by [ * 285 ] law to the payment of their debts, and as the. rents follow the land, the legislature intended that creditors should have the incident as well as the principal.

Cases have been cited from the chancery decisions in England, arising from the construction given to wills, as illustrating the argument of the defendants. Thus, a devise that “ after all the testator’s debts were paid, the rest and residue should go to the sonit was decreed that the rents which the son had received after the death of the devisor should be applied to the payment of the debts. [3 P. Will. 358. —1 Atk. 421.] So in 8 Ves. jun. 308, where the testator having created a particular fund for the payment of mort gages out of the estates of the tenants for life, “ the rents and profits during their lives are the first fundbecause the intent of the testator was expressed, that the tenants, for life were not to have any thing until after the discharge of the mortgages. So it is argued that the intention of the legislature is, that the heirs shall have nothing in, or issuing from the fund, until the debts of the deceased are paid.

There is one distinction between those cases, and the one at bar, which is obvious. The devisee has a right to enter upon the estate, and take the rents ; but the executor or administrator has, with us, no such right. They are to administer the goods, chattels, rights, and credits of the deceased. Until the late statute of 1818, c. 190, they were not even to inventory the real estate. That descends by law to the heirs, and they accordingly may enter immediately. They take the estate pledged indeed for the payment of the debts. If it should be wanted for that purpose, a mode is prescribed by the statute, whereby the executor or administrator may be authorized to make sale of it. But until such authority is obtained, the right to possess the real estate is in the heirs.

It may be considered as analogous to the case of an estate mortgaged. So long as the creditor permits the heirs of the mortgagor to retain the possession, the rents * and profits [ * 286 ] are taken by the heirs. The mortgagee’s right to the rents commences upon his taking possession of the estate, according to the manner prescribed in the law. Still the estate has always been a pledge for the payment of the debt. So, until the executor or administrator, in behalf of the creditors, shall sell the real estate, according to license obtained from the court, the heirs remain rightfully in possession, and entitled to the rents and profits. In the case of the mortgage, the mortgagee might enter, and take the pmfits II e, therefore, is in a better condition than executors and administrators, who would be trespassers, if they should enter and oust the heir, and take the profits. Yet it is well settled, that a mortgagee cannot recover for the rents accruing before his actual entry or possession. The estate of the mortgagor descends to his heirs. If the mortgagee omits to take possession, he is considered as waiving any right to the rents. When he pleases, he may enforce his remedy against the land; but until he does so, it remains a dead pledge.

The common case of a lien created by attachment is still more analogous to the case at bar. For there the creditor has no right to enter, until he has obtained judgment and execution. During the pendency of the suit, the land is charged with the encumbrance of the debt to be recovered ; the execution is satisfied by a levy on the land, or by rents and profits, that shall accrue; but never on the rents, which have accrued between the attachment and the levy. Those the debtor rightfully received, until he was dispossessed; and the creditor has no remedy for them.

Rents accruing after the decease, cannot be said to be the goods, chattels, rights or credits of the deceased. They are incident to the reversion. [Bac. Abr. Title Executors and Administrators, H. 3. and the cases there cited.]

It has been argued that there is no equity on the part of the heirs; because the creditors should be paid, before [ * 287 ] * they should have any thing from their ancestor. This is not a full view of the subject. If it were a question of expediency, it would seem not unreasonable, that the heirs should be permitted to occupy the land, until the creditors should ascertain that it is wanted for the payment of the debts. Is it not to be supposed, that the legislature, if it were a new question, would rather permit them to enjoy a temporary subsistence from the real estate, than to turn them immediately destitute upon the charity of the world ?

The statute of 1789, c. 11, § 2, providing that the judge of probate should appoint referees, to ascertain what the executor or administrator ought to credit in his account, for the use and occupation of the real estate, it seems to us, does not recognize the right of executors and administrators to have the rents of the real estate, foi the use of the creditors; but provides for the case, where they happen themselves to be occupants, by prescribing the mode, in which they ought to account, for the use of those to whom the same shall belong

The claim of the plaintiffs is supported by equitable considerations. When the intestate died, his estate was supposed to be much more than sufficient for the payment of his debts. The heirs had a reasonable expectation, that the rents, which should accrue, would enure to their use. Besides, the widow has sued the plain tiffs for her dower, and has recovered a large sum in damages for detention. That suit could only have been maintained against the heirs; and if they are not to have the rents, the law would seem to impose upon them a great charge, without any corresponding advantage or remedy.

Part of the rents were received by the defendants from estates which were mortgaged by the deceased. But as the mortgagees never entered, the estates descended to the heirs j subject indeed to the debts; but in every other respect as a fee simple. No difference is to be made, in this case, between rents received from the lands which were mortgaged, and from those which were unencumbered. * The defendants are bound to pay them [ * 288 ] to the heirs.

The nonsuit in this case must be set aside, and the defendants be defaulted . 
      
       [As the real estate left by persons deceased, is required to be inventoried by the administrator, and is made assets in his hands for the payment of debts, it would seem most agreeable with the spirit, if not with the letter of the law, that the rents and issues of such real estate, by whomsoever they may have been received, after the death of the intestate or testator, should be holden in trust and liable for the payment of the debts of the deceased, as far as they may be wanted for that purpose.—Ed.]
     