Under the California statutes the executor or administrator may maintain an action to quiet title independently of whether the real property involved is necessary for the purposes of administration.69

§ 1473. Statutes Which Merely Subject Realty to Payment of Debts Vest No Title in the Personal Representative.

In England and in most of the jurisdictions in the United States statutes have been enacted which to a greater or less degree modify the common law rule as to the heir or devisee being vested with the immediate legal title and right of possession to realty upon the death of the owner. The statutes in all cases must be consulted in order to ascertain the extent of the modification.

We have seen how, by reason of statute, the real property of an estate may be resorted to for the payment of the decedent's debts when the personalty is insufficient for that purpose.70 In this connection the statutes usually vest no title in the executor or administrator, but merely confer a naked power to sell the realty when such a sale is required in order to pay the debts. In such a case, however, it is generally necessary for the executor or administrator to petition the probate court and secure from it an order authorizing the sale of the realty, which can only be done by a due showing that the necessity contemplated by the statute in fact exists." It is a mere right contingent upon the order of the court and, until all the statutory requirements have been duly complied

69 Rice v. Carey, 170 Cal. 748, 151 Pac. 135.

70 See § 1465.

71 Carr v. Hull, 65 Ohio St. 394,

87 Am. St. Rep. 623, 58 L. R. A. 641, 62 N. E. 439; McQuitty v. Wilhite, 218 Mo. 586, 131 Am. St. Rep. 561, 563, 117 S. W. 730.

with, the realty can not be considered as a personal asset.72

This naked power to bring about a sale of the real estate does not, prior to the time that the contingency contemplated by the statute has arisen and the executor or administrator has established his right of sale by appropriate proceedings, vest the executor or administrator with any title to the property or right to the possession or to the rents and profits thereof; and all suits regarding the property must be brought by the heir or devisee."3 The proceeding to sell land of a deceased person for the payment of his debts is a special one." From the time the petition is filed for the allowance of the sale until the final confirmation of the sale the whole transaction partakes of the nature of a proceeding in rem. The court, having jurisdiction of the matter, so long as anything remains to be done, retains the power to make any necessary order or to correct mistakes. If a former order is not in accord with the authority conferred by the statute, the court should cause the error to be rectified, and until this is done a sale of the realty should not be confirmed.75

The general rule may be stated to be that where the owner of realty dies intestate, or his will does not convert the realty into personalty by provisions therein or charge the realty with the payment of debts or legacies, and the

72 Haynes v. Price, 20 N. J. L. 480.

73 Thorp v. Miller, 137 Mo. 231, 38 S. W. 929; Hall v. Farmers and Merchants Bank, 145 Mo. 418, 46 S. W. 1000; McQuitty v. Wilhite, 218 Mo. 586, 131 Am. St. Rep. 561, 563, 117 S. W. 730; Moseley

v. McBride, 40 Okla. 270, 138 Pac. 138.

74 Miller v. Hanna, 89 Neb. 224, Ann. Cas. 1912C, 573, 131 N. W. 226.

75 Miller v. Hanna, 89 Neb. 224, Ann. Cas. 1912C, 573, 131 N. W. 226: Prudential Real Estate Co. v. Hall, 79 Neb. 808, 116 N. W. 40.

purpose of the statute is merely to charge the real property of the decedent for the payment of his debts in the event the personalty is insufficient for that purpose, the executor or administrator has no concern with the realty where there are no debts or where the personalty is more than sufficient to satisfy the claims.76

§1474. The Same Subject: Heir or Devisee May Be Divested of Rights in the Realty.

Although the heir or devisee may be entitled to the possession of the real property of a decedent, yet the statute may allow either to be divested of such right by proper proceedings, such as an order of the court directing a sale of the real estate after a due showing of the necessity for such sale in order that the debts of the decedent may be paid." Statutes which authorize an executor or administrator to take possession and control of the real property of a decedent for purposes of administration and of paying debts, as a general rule postpone the rights of the heir or devisee pending administration if the executor or administrator in fact asserts his statutory right of possession or control of such property, such control being of course asserted pursuant to the terms of the statute and authorized thereby.78

76 Stewart v. Smiley, 46 Ark. 373; Jones v. Treadwell, 169 Mass. 430, 48 N. E. 339; Moseley v. McBride, 40 Okla. 270, 138 Pac. 139; Garman v. Glass, 197 Pa. St. 101, 46 Atl. 923; In re Duffy's Estate, 209 Pa. St. 390, 58 Atl. 840.

77 McDade v. Burch, 7 Ga. 559, 50 Am. Dec. 407; Lane v. Thompson, 43 N. H. 320.

78 Banks v. Speers, 97 Ala. 560, 11 So. 841; Stovall v. Clay, 108 Ala. 105, 20 So. 387; Cross v. Johnson, 82 Ga. 67, 8 S. E. 56; Marvin v. Schilling, 12 Mich. 356; Northcraft v. Oliver, 74 Tex. 162, 11 S. W. 1121; Austin v. Bailey, 37 Vt. 219, 86 Am. Dec. 703.

If the statute vests in the executor or administrator the right of possession and control of the real property of the decedent until after the debts have been paid and until the settlement of the estate, and there are in fact debts of the decedent unpaid, the personal representative is entitled not only to possession of the realty, but also to collect the rents from the property, and a suit by an heir for the collection of such rents can not be maintained. But although the statute may confer upon the executor or administrator the right to collect the rents of realty for the purpose of paying debts, or although the real property of the estate is charged by the statute with the payment of debts, this does not create a perpetual right in the personal representative. The heirs can not be forever barred from the possession of the lands because of the neglect of the personal representative and the creditors to enforce payment of the debts due from the estate. And if the debts are discharged, there is no basis for the claim of any continued right in the personal representative to control the lands.80

§ 1475. Statutes May Give the Personal Representative the Right of Possession of the Realty.

Where there are no debts and no necessity exists for administration, the heir is generally allowed to take possession of the real property and to maintain actions respecting the same even without administration.81 And

79 Hopson v. Oxford, 72 Ark. 272, 79 S. W. 1051.

80 Stewart v. Smiley, 46 Ark. 373; Moseley v. McBride, 40 Okla. 270, 138 Pac. 139.

81 Binswanger v. Henninger, 1

Alaska 509; Johnson v. Hall, 101 Ga. 687, 29 S. E. 37; Moseley v. McBride, 40 Okla. 270, 138 Pac 138; Houston & Tex. C. R. Co. v. Knapp, 51 Tex. 569; McKenney v. Minahan, 119 Wis. 651, 97 N. W. 489.

generally the heir is entitled to and may recover possession as against strangers, although the executor or administrator is, under the statute, entitled to possession as against the heir.82

In some jurisdictions the statutes are so comprehensive as to give to an executor or administrator, contrary to the common law rule, the right of possession and control during administration, not only of the real property of the estate, but of the rents and profits thereof, as against the heir and devisee, and all of such property is subject, if necessary, to disposition for the payment of the debts of the decedent.83 But if the executor or administrator collects rents from the real property of the estate and uses the same for the purpose of paying claims, he must do so in the manner prescribed by statute, otherwise he is not relieved from liability to the heir.84

Where title and right of possession in the real property vest in the heir immediately upon the death of the owner, the heir is chargeable with taxes assessed subsequent to the owner's death and the executor or administrator is not entitled to credit for such taxes paid by himself;85

82 Spotts v. Hanley, 85 Cal. 155, 24 Pac. 738; Berry v. Eyraud, 134 Cal. 82, 66 Pac. 74.

83 Cruikshank v. Luttrell, 67 Ala. 318; Stovall v. Clay, 108 Ala. 105, 20 So. 387; Stewart v. Smiley, 46 Ark. 373; Hopson v. Oxford, 72 Ark. 272, 79 S. W. 1051; In re De Bernal's Estate, 165 Cal. 223, Ann. Cas. 1914D, 26, 131 Pac. 375, 380; Autrey v. Autrey, 94 Ga. 579, 20 S. E. 431; Toerring v. Lamp, 77 Iowa 488, 42 N. W. 378; Edwards v. Evans, 16 Wis. 181.

The executor has the right of possession of the real property of the estate until the termination of the administration, even though the condition of the estate may not be such as to necessitate the actual taking of possession.-Goff v. Kelsey, 78 Ore. 337, 153 Pac. 103.

84 McClead v. Davis, 83 Ind. 263. See, also, Baker v. Reese, 150 Pa. St. 44, 24 Atl. 634.

85 Lucy v. Lucy, 55 N. H. 9.