
    Aubuchon, Appellant, v. Lory, Respondent.
    1. An action can not be maintained by an executor or administrator as such to recover damages for trespass upon realty belonging to the estate of the testator or intestate. The action should be brought in the name of the heir or devisee.
    
      Appeal from St. Louis Land Court.
    This was a suit originally commenced before a justice of tbe peace. Tbe plaintiff, Cecille Aubucbon, styled berself in ber complaint “ Administratrix of the estate of Gr. Aubucbon, deceased,” and complained that defendant, Lory, “did take and move fence off tbe lands belonging to tbe estate of the said Gr. Aubucbon, deceased.” In the summons issued by tbe justice, plaintiff is styled “ executrix.” Tbe defendant pleaded title in himself, whereupon the cause was removed to tbe Land Court. In tbe Land Court, a motion to dismiss tbe suit was made on tbe ground that plaintiff could not, as executrix, sue for damages to tbe realty. On tbe bearing of this motion, although plaintiff, orally by attorney, alleged title in her individual right, tbe court -sustained the motion and dismissed tbe suit; whereupon plaintiff appealed.
    
      A. J. P. Garesché, for appellant.
    
      S. II. Gardner, for respondent.
   LEONARD, Judge,

delivered the opinion of tbe court.

Tbe plaintiff, as executrix, instituted an action in a justice’s court for an alleged trespass upon her testator’s land, committed since bis decease, which, on a plea of title, was removed into tbe Land Court, where it was dismissed upon the ground that the plaintiff could not maintain a suit in that capacity for tbe alleged wrong.

The judgment must be affirmed. Tbe real estate of a deceased person descends, upon bis death, to bis heirs, or passes to the devisees under his will. By tbe common law, tbe personal representative, whether executor or administrator, takes no interest in it, and our statute" gives him nothing hut the naked power to sell for the payment of debts, or to make short leases, under the direction of the county, court. The right to the possession, therefore, belongs to the heirs or devisees, and they only are the proper parties to sue for any injury to it. It is upon this principle that executors and administrators, as such, are not allowed to maintain actions of ejectment. The judgment is affirmed.  