
    Woodin and others vs. Bagley, executor, &c.
    NEW YORK,
    May, 1835.
    The next of kin cannot maintain an action, or prosecute a claim for a distributive share of the personal property of the deceased, in their character of next of kin ; letters of administration must be taken out, and suit brought in the name of the administrator.
    
    In a reference under the statute,on the presentation of a claim to an executor for a debt or demand against the estate he represents, the agreement to refer must present substantially the issue between the parties ; it is a substitute for a declaration and plea.
    A material reduction by the executor, of the claim brought against the estate, is such satisfactory evidence that its payment was not unreasonably resisted or neglected, as to exempt the executor from costs.
    The plaintiffs, the children of Daniel Woodin, deceased, presented a claim to the defendant, as executor of the last will of Hannah Woodin,their grand-mother,for a proportion or distributive share of the personal property whereof their grandfather Peter Woodin died possessed, and which, on his decease, went into the possession of their grand-mother. The executor doubting the justice of the claim, the parties entered into an agreement, pursuant to the statute relative to the duties of executors and administrators, 2 R. 8. 88, § 36, referring the matter in controversy to three disinterested persons. The agreement stated that the plaintiffs, as heirs at law of Peter Woodin, deceased, claimed certain property and money, viz. $151 cash, a sorrel horse sold for $30, beds, bedding, tables, chairs, and other articles of household furniture enumerated in an inventory of Hannah Woodin’s personal property,taken on the 14th February, 1832 ; and that the defendant disputed their title thereto, and denied that they had any right to the property as such heirs; wherefore the matter in controversy was referred to three individuals selected by the parties. On the hearing before the referees, in 1832, the plaintiffs proved themselves the grand-children of Peter Woodin, who had two sons, one of whom was named Daniel, and was the father of the plaintiffs, and died twenty-six years previous to the hearing before the referees. Peter, the grand-father,died eighteen years previous to the hearing. It was proved, that after the death of her husband, Hannah Woodin, his widow, said that she was not left m a destitute situation, as many were ; that she had money left with which to help herself; that she had ,$151, which she had let out to Edward Bagley, and had a note for it, which she calculated to have renewéd every year; and from the inventory of her property, taken in 1832, it appeared that, at the time of her decease, she had a note against Bagley for the sum of $151. It was further proved, that Peter Woodin, the grand-father, died possessed of various articles of household furniture, all of which went into the possession of his widow; and that she sold a horse for $30, and also sold other personal property. In 1807, all the personal property of Peter Woodin, the grand-father, was sold, by virtue of an execution against him, and brought in by one Williams. The property, however, remained in the possession of Woodin, and in December, 1814, after his decease, Williams released the whole of it, except the farming utensils, to the widow, for the consideration of $48. In the same year in- which his property was sold, Peter Woodin was discharged as an insolvent debtor ; and in 1814, when he died, he was insolvent. The defendant insisted, before the referees, that the plaintiffs were not entitled to recover, especially in the form of action adopted,and in-the manner in which their claim was prosecuted; and at all events that the statute of limitations was a bar to a recovery. The referees, however, made report in favor of the plaintiffs for $88 cZa?raagcs,and$35,86 costs. The defendant moved to set aside the report.
    
      H. Hogeboom, for defendant.
    
      J. A. Spencer, for plaintiffs.
   By the Court,

Sutherland, J.

The reference in this case was made under that provision of the Revised Statutes which authorizes executors or administrators, when they doubt the justice of any claim presented against the estate which they may represent, to- enter into an agreement in writing, with the claimant, to refer the matter in controversy to three disinterested persons, to be approved by the surrogate. 2 R. S. 88, § 36. Such agreement and approval of the surrogate are to be filed in the office of a clerk of the supreme court, or of the clerk of the court of common pleas of the county in which the parties or either of them reside; and a rule is to be entered by such clerk, either in vacation or term, referring the matter in controversy to the persons so selected. The referees are to proceed, and hear and determine the matter, and make their report to the court in which the rule for their appointment shall have been entered. The same proceedings are to be had in all respects, the referees are to possess the same powers, and to be subject to the same control, as in cases of reference in the usual manner; and the court may confirm or set aside the report and enter judgment thereon, as in other cases of reference. § 37.

The statute makes no provision for pleadings in such cases. The agreement to refer is the commencement of the suit It must present substantially the issue between the parties, stating the claim upon one side, and the denial of its justice on the other; it is a substitute for declaration and plea. Questions of some difficulty may yet arise upon the construction and operation of this statute, but it is not necessary to anticipate them. The agreement to submit, in this case, states the nature and extent of the plaintiffs’ claims, and the character in which they present them, with as much precision as an ordinary declaration in assumpsit; and it contains a general denial of the justice of those claims, on the part of the defendant. It is to be considered a part of the record, as much as though it were in form a declaration.

The plaintiffs are some of the heirs at law of Peter Woodin deceased, being the sons and son-in-law of his deceased son Daniel Woodin. The defendant Bagley is the executor of Hannah Woodin, the widow of Peter j and the plaintiffs allege that Peter Woodin died in possession of certain personal property, which, at his death, went into the possession of his widow, and remained in her possession, with the exception of some articles which she sold, until her death in 1832, when they came to the defendant as her executor. The plaintiffs, as heirs at Zaro of Peter Woodin, claim to recover their proportion of this property. The defendant contends that in that ¡character they cannot maintain the action: that letters of administration should have been taken out upon Peter Woodin’s estate, and the action brought in the name of the administrator. The right of the plaintiffs’ whatever it is, accrued immediately upon the death of Peter Woodin, their grand-father ; one third of his personal estate belonged to his widow, and the other two thirds to his personal representatives as tenants in common, subject to the payment of the intestate’s debts. If the widow took possession of the whole, it will not be pretended that the heirs, as such, could then have maintained an action against her in any form for their proportion. As heirs, they are not entitled to the personal property of their ancestor; it goes to his personal representatives, who in judgment of law, are entirely distinct from their heirs. T|hey are not liable to the creditors of the estate, as heirs, in respect to the personalty, although they should take possession of it,and convert it to their own use; they must be proceeded against as intermeddlers with the estate and wrongdoers, precisely as though they were strangers to the intestate. The debts due to the estate cannot be collected in the name of the heirs'or next of kin; they cannot, in that character, even sustain a suit in equity for the recovery of personal property belonging to the intestate, although exclusively entitled to the beneficial interest therein; they must take out letters of administration,and sue in that capacity. A husband cannot collect the debts due to his wife, although they may belong exclusively to him, except as administrator upon her estate. Jenkins and others v. Fryer and others,4 Paige,47,and the cases therereferred to.

If the plaintiffs could not have maintained this action in its present form, immediately after the death of Peter Woodin, can the time which has since elapsed have increased or changed their powers or rights in this respect ? It can have this effect only by raising the presumption that all the debts due from the estate have been paid, and that whatever of the personalty remains, belongs to the next of kin, free and discharged from all claims upon it. But admitting this to be a legitimate conclusion from the lapse of time, the formal objection still remains—that the personalty can be recovered only in the name of the administrator or other personal representative. This precise point was decided by the chancellor m Champenois v. Champenois, referred to by hnmn Jenkins v. Fryer, 4 Paige, 51, where he held that the children of a legatee were not entitled to recover the legacy without administering upon the estate of their father, although it was admitted that therewasno debts dv.efrom, the deceased legatee, andthat the taking out of letters of administration was a mere formal proceeding. Vide also 4 Litt. R. 264. But in this case the presumption that there were no debts of the intestate remaining unpaid, is rebutted by the fact which was proved in the case, that he died insolvent and unable to pay his debts, In Hyde v. Stone, 7 Wendell, 354, an action of trover was sustained in favor of a son for personal property left by his father, without administration having been granted. But in that case the defendant had expressly admitted the right of the plaintiff, and had offered to give him" the possession of the property; and it was remarked by the court, that after that, he ought not to be permitted to object that he was responsible only to the administrator of the estate of the plaintiff’s father, and not to the plaintiff himself, who is the only person beneficially interested in the estate. Page 358. It is like the case of an express promise to pay the assignee of a chose in action upon which an action may be maintained by the assignee, in his own name. That case admits the general principle, and is taken out of it by its special circumstances. This objection is fatal to the action, and it is unnecessary to consider the other grounds upon which the report is sought to be set aside.

The report is certainly erroneous in charging the defendant with costs. He reduced materially the plaintiffs’ claim, which is satisfactory evidence that there was nothing unreasonable in his refusal or neglect to pay the demand; and, in such cases, an executor or administrator is not liable for costs. 2 R. S. 90. 5 Wendell, 74. 6 id. 554. Robert v. Ditmas, 7 Wendell, 522.

The statute of limitations, I apprehend, might also be effectually interposed against the claim.

Report of referees set aside.-  