#### Horace R. Plumley's Adm’r. *v.*Fred Z. Plumley and Ziba Plumley.

November Term, 1910.

Present: Rowell, C. J., Munson, Watson, Haselton, and Powers, JJ.

Opinion filed March 9, 1911.

*Executors and Administrators*— Injury *to Decedent’s Estate after His Death*— Administrator’s *Right to Maintain Trespass on the Freehold*— Review—Presumptions.

This Court will make only necessitated presumptions or inferences for the purpose of a reversal.

The mere fact that plaintiff is administrator of a decedent’s estate does not show that plaintiff has the right to maintain trespass on the freehold for injuries to real property of which the decedent died seized, committed after his death, for plaintiff, notwithstanding the lien on real property which an administrator may assert in connection with the settlement of an estate, may have surrendered possession to the heir before decree of distribution, and before the expiration of the time for paying the debts, as P. S. 2838 recognizes that he may.

Trespass on the freehold. Plea, the general issue with notice. Trial by court at the September Term, 1907, Rutland County, *Hall,*J., presiding. Judgment for defendants. Plaintiff excepted. The opinion states the case.

*Charles L. Howe*for the plaintiff.

*John D. Spellman*for the defendant.

Haselton, J.

This is an action of trespass on the freehold brought by the administrator of Horace R. Plumley against Fred Z. Plumley and Ziba Plumley. The case was tried by the court and upon the facts found judgment was rendered for the defendants to recover their costs. The plaintiff excepted.

June 6, 1906, the plaintiff’s intestate was the owner of land from which a house had previously been sold. On that day *287he sold a barn on the premises for twenty-five dollars and received the money. He gave a receipt signed and dated, the body of .which read: “Received $25 Dol of Fred Z. Plumley for said barn. ” It was orally agreed that the barn was to be torn ■down and taken from the land when the plaintiff’s intestate Horace removed his hay from the barn. December 24, 1906, Horace died. Sometime before his death he got the receipt and showed it to his sister, admitted the sale, the receipt of the money and his signature to the paper given. The hay had not been removed when he died. The plaintiff administrator claimed that the receipt was a forgery and notified the defendants, Fred Z. and his brother Ziba, not to take down the barn nor to move the lumber. After receiving this notice the defendants went upon the land took down the barn and moved part of it away. The administrator brought this suit and claims, .among other things, that the receipt was not admissible under the Statute of Conveyances as evidence of the sale of real estate, that the agreement as to the removal of the barn would not vest the title to the barn in Fred until severance and delivery, that if the agreement amounted to a license it was executory and revocable and, that the plaintiff administrator revoked it by the notice which he gave though retaining the money. He suggests, however, that he or the estate of Horace is liable to account for the twenty-five dollars which Horace got and for which he had given a receipt falsely claimed by the plaintiff to be a forgery.

The plaintiff does not make the point that a mere license unexecuted is revoked by the death of either the licensor or the licensee. We do not discuss that question, nor in fact the questions raised by the plaintiff, for the mere fact that the plaintiff is the administrator of Horace Plumley does not give him a right to maintain trespass for injuries to real estate of which his intestate died seized, such injuries having been inflicted after the death of the intestate. That mere fact is all that here appears to maintain that right. The principle is illustrated in various ways in the cases. *Lyman*v. *Webber, 17*Vt. 489; *Hawkins*v. *Hewitt,*56 Vt. 430; *Babbitt*v. *Bowen,*32 Vt. 437; *Roberts’ Admr.*v. *Morgan,*30 Vt. 319, 328; *Austin*v. *Bailey,*37 Vt. 219, 222.

*288Our Statute, P. S. 2838, recognizes that notwithstanding the lien on real property which an administrator may assert in connection with the settlement of an estate, he may nevertheless surrender possession to the heir before there is a decree of the probate court and before the time for paying debts has expired.

For anything that appears in this case the plaintiff may have surrendered the possession of the real estate to the heir or heirs and so not have been entitled to maintain this action of trespass on the freehold.

Whatever presumptions the court below might have been warranted in making or whatever the presumptions which this Court might make to uphold the judgment, we make no unnecessary presumptions or inferences for the purposes of a reversal.

Under an exception to the overruling of a motion not complied with, by which motion further findings were requested, the plaintiff raises questions other than those already noticed. But these questions relate to the plaintiff’s false claim that the receipt was a forgery and to the question of damages. Therefore, in the view taken of the case, they are immaterial.

*Judgment affirmed.*