In re Misamore

Foote, C. — This is an appeal from an order settling and allowing the final account of an administrator. The contestants and appellants are the children and heirs at law of the decedent.

The principal matter at issue is the responsibility of the administrator for rents, issues, and profits derived from the possession and occupation of a certain tract of land—a possessory claim — left by his decedent.

The contestants claim that the administrator should be charged “with this land, and with the reasonable value of the rents, issues, and profits thereof; and during the periods, when he has farmed it himself, and made a profit in excess of the reasonable value of the rents, issues, and profits, then with the profit made by him out of the land.”

In opposition to this, the administrator claimed and endeavored to show that the decedent had no title to the land; that it was a mere possessory or “squatter’s claim”; that he only took possession to take off the growing crop of the year 1866, — that in which his decedent died; that he surrendered the land, finder title paramount, to other parties, and that he afterwards bought it from the true owners, and never held possession, except adversely to his decedent’s estate, save during the year 1866; that be became the owner by paramount adverse legal title, and has always held it as such since 1873, and never held possession as administrator since 1867.

As to the point made that the probate court cannot make an administrator responsible for rents and profits [171]of decedent’s land, it is settled that it can do so, where he occupies and uses it as his own. (Walls v. Walker, 37 Cal. 431; 99 Am. Dec. 290.)

So far as the finding of laches on the part of the contestants is concerned, we do not see how it is supported by the evidence.

The administrator, as trustee, presents his final account, the estate being open and unsettled, for allowance; and as to all property and matters over which he has control, and about which he acts in that capacity, he asks that they be settled in this proceeding. To say, then, that as to these matters, which pertain to his final account as trustee, and for which he seeks judicial sanction, the contestants shall not be heard, because the administrator has chosen to neglect the final settlement of the estate, hardly comports with the doctrine of courts of equity in such cases.