Opinion
October, 1910.
A man died on the 18th of July, 1909, seized of a house and lot wherein he and his daughter, the defendant, and her family had resided, and devised such land and his furniture in the house to the plaintiff, his son, for life. The will was probated November 17, 1909. The defendant, as she admits, continued to occupy the upper floor of the house, and, as plaintiff alleges, the whole house to January 17, 1910. This action is to recover for such use and occupation. The defense is that the defendant occupied only part of the house and paid the temporary administrator for that. The order appointing a temporary administrator and authorizing him to take possession of the real property does not appear in evidence, nor is there proof thereof. The judgment dismissing the complaint should be reversed and a new trial ordered, costs to abide the event. Jenks, Rich and Carr, JJ., concurred; Woodward, J., dissented. Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.