JOHNSON v. DEPEW, N.Y. App. Div., Judgment, Law, casemine.com

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Factual and Procedural Background

Carlton E. Johnson, as Administrator of the Estate of Carl Johnson, deceased, appealed from a judgment of the Niagara Trial Term. The respondent, Martha C. Depew, was a surviving cotenant who held title to real estate as a tenant in common with the decedent. After the decedent's death on December 5, 1967, respondent continued to occupy and maintain the property. The administrator demanded rent for the use of the premises from the date of death, which respondent refused to pay. The trial court dismissed the administrator's action seeking rent. The administrator also pursued a partition action, obtaining an interlocutory judgment for partition. The present appeal concerns the right of the administrator to collect rent from the surviving cotenant during estate administration.

Legal Issues Presented

Whether an estate administrator is entitled to collect reasonable rent from a surviving cotenant occupying real property owned in tenancy-in-common with the decedent during the administration of the estate.
Whether the statutory authority granted to fiduciaries under former section 123 of the Decedent Estate Law (now EPTL 11-1.1) extends to surviving cotenants who are not distributees.
Whether the historic common law rule permitting cotenants to occupy property without paying rent applies between an administrator and a surviving cotenant.

Arguments of the Parties

Appellant's Arguments

The administrator, vested with legal ownership rights over the estate's assets, has statutory authority under former Decedent Estate Law section 123 (EPTL 11-1.1) to collect rents from tenants in possession, including surviving cotenants.
The general rule allowing cotenants to occupy property without paying rent applies only among cotenants themselves and not to the relationship between a tenant and an administratrix.
No statutory exception excludes surviving cotenants from paying rent to the estate, and if the legislature intended such an exception, it would have been clearly stated.

Respondent's (Dissenting Judge Witmer's) Arguments

The Limberg precedent relied upon by the majority is factually distinguishable and does not support the administrator’s claim against a surviving cotenant.
Historically, a cotenant may occupy property without liability so long as they maintain it and do not exclude others; this principle should apply here.
Statutory authority to collect rent applies only to tenants in common who acquired their interest through inheritance from the decedent, not to surviving cotenants who co-owned property with the decedent.
The administrator cannot encroach upon the rights of surviving cotenants or exclude them from property use.
The proper legal remedy for distribution of rents and proceeds among cotenants, including administrators, remains partition rather than rent collection.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Wood v. Phillips, 43 N.Y. 152	General rule that a cotenant may occupy property without paying rent unless excluding other cotenants.	Used to establish the baseline common law rule regarding cotenant occupancy and liability.
Bullock v. Hartburg, 286 App. Div. 918	Reinforces the rule that cotenants can occupy without rent liability absent exclusionary acts.	Supports the majority's recognition of general cotenancy principles.
Zapp v. Miller, 109 N.Y. 51	Exception where occupancy excludes other cotenants, creating liability for rent.	Clarifies when a cotenant may be liable for rent to other cotenants.
Limberg v. Limberg, 256 App. Div. 721, affd. 281 N.Y. 821	Administrator’s statutory authority to collect rent from distributees occupying estate property during administration.	Majority relied on this case to extend rent collection rights to surviving cotenants; dissent viewed it as factually distinguishable.
Matter of Merrill, 165 Misc. 161	Administrator’s authority to take possession of decedent’s real estate during administration.	Supports statutory evolution of administrator’s rights over real property.
Matter of Burstein, 153 Misc. 515	Continued recognition of administrator’s right to possession of real estate during estate administration.	Further supports administrator’s statutory rights.
Matter of Condax, 193 Misc. 280	Legal remedy for distribution of rents and proceeds among cotenants is partition.	Dissent cited this to emphasize that rent collection is not the proper remedy among cotenants.

Court's Reasoning and Analysis

The majority court analyzed the interplay between common law cotenancy principles and statutory authority granted to fiduciaries under the Decedent Estate Law (now EPTL 11-1.1). While generally a cotenant may occupy property without owing rent to other cotenants unless excluding them, the court noted that this rule applies only among cotenants themselves and not between a tenant and an estate administrator.

The statute authorizes fiduciaries to take possession and collect rents from estate property during administration. The majority found no statutory exception excluding surviving cotenants from paying reasonable rent, reasoning that the administrator, as legal owner of the estate's assets, has the right to collect rent from the surviving cotenant in possession.

Because the record was unclear regarding the date respondent vacated the premises and the reasonable rental value, the court reversed the dismissal and granted a new trial solely on the issue of rent amount due and owing.

In dissent, Judge Witmer emphasized the historic common law rule favoring cotenant occupancy without rent liability and argued the statutory authority to collect rent applies only to tenants in common who inherited the decedent’s interest, not surviving cotenants. The dissent warned that the majority’s ruling would improperly allow administrators to exclude surviving cotenants from property use and disrupt longstanding cotenancy rights. The dissent maintained that the proper remedy for distributing rents among cotenants remains partition.

Holding and Implications

Holding: The judgment of the trial court dismissing the administrator's action was reversed, and a new trial was ordered solely to determine the amount of rent due and owing to the estate from the surviving cotenant.

Implications: The decision affirms the administrator’s statutory right to collect reasonable rent from a surviving cotenant occupying estate property during administration. However, it does not resolve the precise amount of rent, which requires further factual determination. The ruling clarifies that the general common law rule of cotenant occupancy without rent does not apply between an administrator and a surviving cotenant. No new legal precedent beyond this application was established, and the dissent highlights ongoing tension regarding the scope of administrator rights vis-à-vis surviving cotenants.

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CARLTON E. JOHNSON, as Administrator of the Estate of CARL JOHNSON, Deceased, Appellant, v. MARTHA C. DEPEW, Respondent.

Judgment reversed on the law and facts, with costs, and new trial granted solely on the issue of the amount of rent due and owing to the estate from respondent. Memorandum: Generally an individual cotenant may occupy the property of tenancy-in-common without incurring liability for such occupancy ( Wood v. Phillips, 43 N.Y. 152; Bullock v. Hartburg, 286 App. Div. 918) except when the occupying cotenant commits or allows to be committed some act which excludes the other cotenants from the use and enjoyment of the cotenancy ( Zapp v. Miller, 109 N.Y. 51). It has long been settled, however, that the general rule applies only as between the tenants themselves "and not as between a tenant and an administratrix, which is the relationship of the parties to this controversy". ( Limberg v. Limberg, 256 App. Div. 721, affd. 281 N.Y. 821.) Former section 123 of the Decedent Estate Law (now EPTL 11-1.1; L. 1966, ch. 952) authorizes every fiduciary "To take possession of, collect the rents from and manage * * * any property or any estate therein owned by an estate or trust". (EPTL 11-1.1, subd. [b], par. [5], cl. [A].) It is upon the authority of this statute that the tenant in possession who is a distributee is required to pay a reasonable rental to the estate during the administration ( Limberg v. Limberg, supra, p. 722). The language of the statute expresses no exception to the administrator's power to collect the rentals where the tenant is not a distributee but merely, as here, a surviving cotenant. If the Legislature had intended to carve out an exception premised on the status of the tenant in occupancy, it would have said so clearly in the statute (EPTL 11-1.1). The administrator being vested with the rights of legal owner of all the assets of the estate, it follows that he has the right to collect reasonable rental from the respondent, surviving cotenant in possession. Accordingly, the dismissal of appellant-administrator's action by the trial court should be reversed. Since it is not clear from the record on what date respondent quit the premises, or what was the reasonable rental value, a new trial is required solely for the purpose of determining the amount of rent due and owing to the estate from respondent. All concur except Witmer, J., who dissents and votes to affirm, in the following memorandum: I cannot agree with the conclusion of the majority that the administrator is entitled to collect rent from decedent's cotenant from the date of decedent's death pursuant to EPTL 11-1.1 (subd. [b], par. [5], cl. [A]) which was derived from section 123 and subdivision 2 (par. [f], cl. [1]) of section 127 of the Decedent Estate Law. Their reliance upon Limberg v. Limberg ( 256 App. Div. 721, affd. 281 N.Y. 821) is unsound, because that case is distinguishable on its facts. Respondent admittedly took title of the subject real estate on December 22, 1961 as a tenant in common with the decedent, and she resided thereon with him until his death on December 5, 1967. She continued to reside on the property thereafter and to maintain it until it was sold in a mortgage foreclosure action in July, 1970. On April 29, 1968 plaintiff, as administrator of the decedent's estate, caused a letter to be sent to respondent demanding that she pay to him rent for the use of the premises from December 5, 1967 at the rate of $150 per month. Respondent refused to make such payment and has paid nothing to plaintiff. It appears that in 1964 the decedent, though continuing to live with respondent, had begun an action against her to partition the property, and an answer was interposed; but the action was not pursued and it lay dormant. In September, 1968 plaintiff administrator was substituted as plaintiff in the partition action and he obtained an interlocutory judgment for partition of the premises. In January, 1969 he instituted this further action to require respondent to pay him not the reasonable monthly rental value of the property but one half thereof, to wit, $75 per month from the date of decedent's death; the action thus suggesting an attempt for an accounting. The trial court, in my view, properly dismissed the action, and in doing so referred plaintiff to his partition action and the interlocutory judgment therein. As the majority state, historically one cotenant may occupy the property owned in common without incurring liability to his cotenants so long as he maintains the property and does not exclude them ( Wood v. Phillips, 43 N.Y. 152). Prior to 1930 an administrator of a decedent had authority only to administer the personal property, and the real estate descended to the decedent's heirs at law as tenants in common. By section 123 of the Decedent Estate Law in 1930 the administrator was given the right to take possession of the decedent's real estate during the period of the administration of the estate ( Matter of Merrill, 165 Misc. 161; Matter of Burstein, 153 Misc. 515). This right was continued by Decedent Estate Law § 127, subd. 2, par. [f], cl. [1]), and, effective September 1, 1967, by EPTL 11-1.1 (subd. [b], par. [5], cl. [A]). Under it, during the period of administration, an administrator may require any of the tenants in common who acquired that status through inheritance from the decedent, to pay rent to him for use of the premises owned by decedent at his death ( Limberg v. Limberg, supra). This statute, however, was not designed to disturb the historic relationship of tenants in common with a decedent; and it could not lawfully do so. The statute refers to the "estate" of the decedent. When the decedent has only a fractional interest in a parcel of real estate, that fractional part may be taken into administration by his administrator; but the administrator gains no right which the decedent did not have and cannot encroach upon the rights of the surviving cotenants. For example, suppose that each one of ten men has an undivided 10% interest in a substantial real estate block. Under the holding of the majority of this court, upon the death of one of such tenants in common, his administrator could take over the complete management and administration of such realty to the exclusion of the surviving nine cotenants. The mere statement of the proposition demonstrates its fallacy. Where the surviving cotenants were cotenants of the decedent, any one of them may use the property so long as he does not exclude his other cotenants, and he may collect rents in the same manner for the benefit of all of the cotenants ( Matter of Condax, 193 Misc. 280). However, as between such cotenants, including the administrator of the deceased cotenant, the legal remedy for distribution of rents and proceeds of the corpus of such real property is still by partition, as has always been the case (see Matter of Condax, supra, p. 281). Accordingly, I dissent and vote to affirm the judgment of the trial court.

JOHNSON v. DEPEW