Real estate vests absolutely in the heir upon the death of his ancestor, and the administrator is merely, under certain circumstances, entitled to its possession, and has only a lien upon it for the benefit of creditors. The title carries with it the right of possession, which right may, at all times, be asserted against all persons, except in the particular instances pointed out by statute. The administrator or executor only can dispute the right of the heir; a wrong-doer cannot. (Bufford v. Holliman, 10 Texas, 564-6; McIntyre v. Chappell , 4 Id. 187; 8 Id. 182; Evans v. Oakley , 2 Id. 184; 10 Id. 34; 20 Id. 810; 6 Johns. Ch. 132.)
JUDGES: Baldwin, J. delivered the opinion of the Court. Cope, J. concurring.
OPINION
BALDWIN, Judge
The principal question in this case is, whether the heir can maintain ejectment for realty left by the ancestor, a considerable period elapsing after the death, and no administration having been taken on the estate, and there being no debts.
We think, independent of other qualification than the fact that no administration exists upon the estate, that the heir may maintain this action. He has a right of entry, subject only to the claim of the administrator, when there is one. This follows from his general title cast by the descent, which is only qualified by the particular statutory right given the administrator. (See Beckett v. Selover , 7 Cal. 216; see also Bufford v. Holliman, 10 Texas, 564, where the subject is fully discussed under a not dissimilar statute of that State.)
It is not necessary to notice other points.
Judgment affirmed.