
    CONSTITUTIONAL COURT, COLUMBIA,
    MAY. 1809.
    M’Vaughters, Administrator of M’Lain, v. John Elder.
    A statutory heir, entitled to a distributory share of an intestate’s estate, cannot legally take or retain possession of any of the intestate’s estate, as heir, until it is delivered to him in due course of distribution: for his share vests only in interest, and not in possession.
    An administrator represents the person of his intestate in relation to his personal estate, which vests in him immediately on the grant of letters of administration; and such grant has relation to the time of the intestate’s death.
    An administrator is the deputy of the Ordinary for the collection and distribution of the effects of the intestate; and the legal estate vests in him as trustee, to be applied according to the rules of law.
    The offspring of females follow the condition of the mother; and those born after the death of a testator, or intestate, become assets by increase.
    The young of female slaves born while the mother is in possession of a wrongdoer, claiming adversarily, shall not belong to the adverse claimant in possession, but to the true owner, or his representatives, provided the right of property be vindicated in the time required by the limitation act.
    Motion for a new trial from Richland district. The action was ^'ovel'> tried before Trezevant, J., in 1807. It appeared, from judge’s report, that M’Lain, the inféstate, left at his death a fe-mare, called Pol Jones, which pro. came into the possession of Margaret ma’e slave, named Bet, and a Iperty, after his death, M’Grew,- who claimed the same, as his next of kin, and legal heir. After having the slave in possessión, from 1795, or 1796, till 1800, she sold her to the defendant, from whom she was demanded by the plaintiff. At the time of the demand, the wench had two children, who were born while she was in the possession of Mrs. M’Grew. The mare died while in Mrs. M’Grew’s possession, having had three colts during the-time of her being in the possession of Mrs. M’Grew, which were grown at the time of the demand. Margaret M’Grew died in the year 1805, intestate, and without ever having administered on the estate of M’Lain. Immediately after her death, the plaintiff obtained letters of administration, as administrator of M’Lain ; and having demanded the negroes and horses abovementioned, from the defendant, who had them in possession, and refused to deliver them up, commenced this action.
    Trezevant, J., charged the jury to find for the plaintiff the full value of the property, including the issue and increase of the female slave, and mare.
    The argument on the motion took place in November, 1807.
    Nott, for the defendant,
    contended, that the presiding judge in the District Court, had misdirected the jury on two points. 1. lu directing them to find for the plaintiff, against a possession held under a title from the sole heir, and only rightful representative of the deceased owner. 2. In directing them to find the value of the offspring of the female slave, and mare, although the same had never been the property of the intestate, having come into existence after his death.
    By the act of 1791, sec. 7, Mrs. M’Grew was entitled to the whole of the intestate’s estate, as bis next of kin, he having left no widow. It was a right which instantly vested in her by operation of law upon the death of the intestate, subject only to the claims of his creditors. There were no creditors. The intestate was not indebted to any one. An administrator was unnecessary. She was entitled to the administration. Was it necessary for her to incur the expense of an administration, in order to give her legal possession of property to which she was legally entitled, and which had come legally into her possession. The law cannot intend so great an absurdity. In former times the common law courts in England had a power to make distribution. The Ecclesiastical Courts encroached on this jurisdiction. 2 Bl. Com. 491. Our Saw has restored the power to the courts of law, and abridged the power of the Courts oí Ordinary. By stat. 22 and. 23, C. 2, c. 2, the administrator must distribute the intestate’s estate. Our act of 1791, distributes the estate, i. e. points out the rules of distribution, which our common law courts are competent to enforce, A. A. ,1745, P. L., forbids an administrator to take any. part of the estate at'its appraised value. So the act of 1789, and prohibits a sale by the administrator, without the sanction of the Ordinary. These are salutary restraints on the administrator, but cannot restrict the right of an heir, who claims the whole under the act of distribution, in a case where no sale is necessary, and where there can be no distribution. In such case the specific assets vest in the sole statutory heir. In general there is no necessity for administration, where creditors are satisfied, or where there is none, unless the heirs, or persons entitled to distributory shares, should disagree. But if it should be admitted, that there is, in all cases, generally speaking, a necessity for an administration on the estate of an intestate ; yet there must be exceptions todhe general rule ; and this case furnishes an instance of the propriety of making exceptions to it. A writ of partition lies for a distributory share of personal estate. A. A. P. L. It lies against the administrator. It is then clear, that the property belongs not to the administrator, but to the statutory heir. If the act vests the property in the person entitled to a distributory share, he may sell that share. Where a distribution is necessary among several, one cannot dispose c¡f the whole, although he may of an undivided moiety, But admitting he cannot ¡sell a moiety undivided, yet, if he is entitled to the whole, he may •surely sell the whole. This court may inquire who has the real legal right, and decide according to such right. In this case Mrs. jVl’Grew had ten years possession, which gave her a legal right, independent of the statute. Her long possession affqfds a strong presumption of the acquiescence and consent of the Ordinary ; and proves that there were no creditors, or other claimants, which could render an administration necessary. An administrator under such circumstances, ought not to be required. In some cases it may cost more than the estate is worth. She claimed, however, as heir, and not by a title adverse to the title of the intestate, or his legal representative. But, at any rate, the verdict is wrong, as it includes the value of the offspring of the mare, which never belonged to the intestate. There .may be a distinction between slaves and eattle.
    
      Stark, for the plaintiff.
    The property in question, never vested in Margaret M’Grew, so as to give her a right, to maintain trover, t0 recovei' the possession, or to defend herself against such an action, brought by the administrator of the intestate. It is not pretended, that the administrator has the absolute right of property; but lie has a right to the possession, as legal representative of the deceased till partition, or distribution, to administer in due course of law. He has also a right of property, secundum quid, but not simpliciter. 9 Co. 38. C. Plow. 270. Our acts of assembly have, in no respect, altered the law, in relation to the rights of administrators to collect and administer the estate. It would be productive of infinite confusion and uncertainty, if persons, entitled to claim distri-butory shares of an intestate’s estate, might legally hold any property of such estate unadministered in opposition to the legal administrator. The right to such share vests, by operation of law, instantly on the intestate’s death, but only in interest, and subject to all the claims of creditors. In the present case, a distribution is necessary. Mrs. M’Grew has left several children, one of whom is the wife of the plaintiff. The defendant has obtained possession of the property which was in her possession at her death mala fide, and refuses to give it up to her lawful heirs. This property cannot be legally recovered as her estate, because it never legally vested in her in possession. And as to creditors, it is yet uncertain, notwithstanding the lapse of time since M’Lain’s death, whether there may not be such. An administrator must give security, and act under the obligation of an oath. The Ordinary is bound to see that the estate is legally administered ; and that caution be given, to guard against fraud, and secure the rights of creditors, and kindred of the deceased, who may have claims on his estate.
    Goodwiw, on the same side.
    The possession of Mrs, M’Grew was tortious. Her sale to the defendant was a wrongful conversion. Her right to the property might be equitable, but she had no legal right. Her claim was on the estate generally; she had no legal right to the specific chattels in question. Her possession was either tortious, or in nature of a trust.
    Nott replied.
   May 6th, 1809. The opinion of a majority of the court, consisting of Grimke, Waties, Bay, Brevard, and Wilds, was de* livered by

Brevard, J.

After stating the circumstances of the case, a majority of the court, Grimke, Brevard, and Wilds, Justices, are of opinion that the plaintiff is legally entitled to recover. We are aware that cases may occur, in which great hardships may result from a rigid adherence to a general rule of law ; and it is possible that this case may furnish an instance of that sort. But we do not feel ourselves authorized, on any occasion, to break through a settled rule of law, or exclude its operation, in order to accommodate a particular case, on account of any peculiar distress, or inconvenience, which it may involve. If this case, or any other, for reasons such as this, should be considered as an exception to the general rule, it is impossible to foresee, or foretell, all the evils it might give birth to. It would open a passage to a flood of exceptions, which would finally sweep away the very foundations of the rule itself. It seems to us better, therefore, to adhere steadily to the rule, than to run the risk of destroying, by attempting to improve it; and a public mischief ought rather to be avoided than private inconvenience, or particular injustice.

On the argument of this motion it was contended, that our statute law has taken away, or abridged, the powers of the Courls of Ordinary, as to the granting of administration, and the distribution of the estates of persons dying intestate. But I believe there is nothing in our acts of assembly, which can be fairly construed to necessitate, or warrant, the conclusion which has been drawn from this proposition, if even it were to be admitted. I believe that the legislature never intended that any person, entitled to claim a portion of an intestate’s estate,.under óur law of distribution, should be authorized to be his own carver; or that he should be allowed, under any circumstances, to take any part of the estate in any other way, than that which has been sanctioned by the rules of law, and the practice of our courts. I believe that the doctrine which has been contended for in behalf of the defendant, cannot be consider, ed as necessarily flowing from a just and sound construction of our laws ; and I am clearly of opinion, that it would not be wise policy to adopt it. Our statute law does, indeed, authorize the partition of personal, as well as real estate, by writ, issuing from the Courts of Common Pleas, or Courts of Equity. This is a very useful, and in some cases, a very necessary provision. It avoids the necessity of a sale of the effects in some cases, where it would be injurious to the interests of the parties concerned ; and it hastens a distribu, tion, in cases where the administrator may be negligent, or dilatory. But this provision does not at all oppugn, or interfere, with the rights of the Ordinary to grant administration, nor with the rights of the administrator in collecting the assets, and paying the debts. The jurisdiction of the Ordinary is concurrent with the courts of law, in the distribution of the estate among the relations of the dc-ceased; except, that where the court grants partition, (ha Ordinary cannot interpose. If the authorities should come ini collfl‘cl;i the Ordinary’s power being inferior, must be suspends ed quoad hoc. In this conflict of jurisdiction no injury can possibly result. The rights of creditors cannot be impaired. The Ordinary is bound to secure the payment of all thO debts, and other necessary charges against the estate, as far forth as the assets will extend, before any distribution among the relations shall take place. The courts of law, and the Courts of Chancery, will never interfere with his right to do so, but will uphold him in the exercise of it. But at any rate, a person who may be entitled to all, or any part of an intestate’s estate, cannot, before partition, or distribution made, and before any administration, have an exclusive, or absolute right of property, in any specific thing be-longing to such estate, so as to entitle him to take the same into'1 possession, and apply it exclusively to his own use, or transfer the right of property and possession to another It is much better for the interests of all who may be concerned, that the deceased should have a legal representative, appointed by the Ordinary, who shall' give security for the faithful discharge of his trust, and who shall be answerable to the Ordinary for every neglect of duty, by which' the interest of any person concerned shall be prejudiced. It may serve to explain the point now under consideration, to inquire into' the origin of the powers and rights of an administrator. My inquiry into the subject shall be very short. Anciently, in Englands, the estates of persons dying intestate, were at the disposal' of the Bishop of the diocese, where the estate lay, who generally kept one third of it to himself, on-'pretence of dedicating it to pious uses for the salvation of the soul of the defunct. 2 BI. Com. 492.. Before that time the king, as the parens patria, and general trustee' of the kingdom, was entitled to the estate, to pay the debts, and1 make provision for the family of the deceased. To remedy this' grievance, the stat. 3 Ed. 1, c. 19, was enacted, which required the* Ordinary to pay the debts of the deceased. 2 Bl. Com. 495. 2' Woodd. 481. And afterwards, the stat. 31 Ed. 3, c. 11, was made, by which it is provided, that the Ordinary shall depute the" nearest of kin of the deceased to administer his goods; This last' statute is the source from which administrations are derived. From' this view of the subject, it is evident that, upon the death of an in. testate, in ancient times, the king, and afterwards the Bishop, was" entitled to the possession and disposal of his personal estate ; and1 that afterwards the appointment of administrators became common1In consequence of the stat. 31 Ed. 3, c. 11, and a subsequent Stat. til, M. 8, e, 5. Vid. 'í'oüer’s Law of Executors, 56. These statutes direct to whom administration shall be granted. But the ad. ministrator is only the agent, or officer of the Ordinary, to whom he is accountable for his trust-. At common law the Ordinary might repeal an administration at his pleasure. Toller, 91. Our law points out his duty in this respect, and confines his power within proper limits. The administrator stood in the place of the Ordinary, who represented the king-, who was the general trustee for the creditors and relations of the deceased'; and the king, as ■parens patrice, represented the person of the intestate. At this day the 'administrator represents the person of the intestate in relation to his personal estate ; which vests in him immediately on the grant of letters of administration, and such grant has relation to the time of the intestate’s death. See Com. Dig. Adm’on. B. 10, 11. Co. Litt. 209. An administrator is then to be considered as the deputy of file Ordinary, who is a public officer, entrusted with the care and management of intestate’s estate, for the benefit of the creditors, and widow, children, and next of kin of the deceased. He is to be regarded as a trustee, in whom the property of the intestate vests by operation of law, for the use of all those who may be legally entitled to the same ; and who is authorized to collect and dispose of the same according to law, in the payment of debts, and neces. sary expenses, and by distribution among those entitled to the surplus, in the due course of administration-. As the legal repre. sentative of the deceased, in regard to his personal estate, he has the same property in the goods of the intestate, as the intestate himself had when living, and the same remedies to recover them. See Plow. 525. Toller 101. 2 Bl. Com. 510. The legal estate vests in the administrator as trustee. The shares to which the wife, or children, or next of kin, of the intestate, may be entitled, do indeed vest immediately on his death, but not in possession. They vest in interest only, as a chose in action. 3 P. Wm.’s 49* Speight v. Meigs, in this court, April, 1805. They have no right of property, or right of possession, till after partition, or delivery by the administrator.

If this doctrine be sound, it follows that Margaret M’Grew had no right to intermeddle with, or dispose of the property in question ; and that the defendant could not derive any valid title from her, or right to retain the goods from the administrator of M’Lain*

But it has been contended, the plaintiff is not entitled to recover damages for the conversion of the offspring of the female slave, and of the mare in question, because they were not in the possession of the intestate at the time of his death, either in deed, or in law.

The answer to this objection is, that, by our law, the brood, or offspring, of tame and domestic animals, is similar to the civil law, which declares that the issue shall follow the' condition of the mother, or dam. 2 HI. Com. 390. 3 Bac. Abr. 301. 1 Hayw. 234. Doma!. B. 1 Tit, 11. This law applies to the joung of slaves, because as-objects of property, they stand on the same footing as other animals, which are assets to be administered by the personal representativo of the deceased owner. If the defendant had, indeed, been the lawful temporary owner of the mother of the young negroes, and of the mare in question, there might be a doubt who should be entitled to young brought forth during the period of the lawful possession of the defendant. But as the defendant was a tortfeasor, and never had any lawful right of property, or possession, in the mothers of the young slaves and horses, he can have no more right, thau any more stranger, to claim the offspring and increase in question. It has, however, been urged that the administrator has no right to recover for their value, because he sues in right of the intestate, and the intestate never had any right which vested before his death. To this objection the answer is, that this increase, from the female slave and mare, is the product of the intestate’s personal estate, which, like the increase of any other stock belonging to the personal estate, are assets to which the administrator has a legal right. For chattels, which never were vested in the intestate in possession, may accrue to the administrator by remainder, or increase. The young of cattle, or the wool of sheep, produced after the testator’s death, shall be assets. Toll. 127, on Ex’rs. 83.

Upon the whole, it is the opinion of a majority of the court that the verdict is right, and ought not to be set aside. In this opinion, Wilds, J., concurred; and added several strong reasons to shew the danger of departing from the settled doctrine of law, in order to gratify a desire to do justice in a particular case, without, maturely considering what mischief and injustice may be thereby occasioned ; and whether the merits of the case has, from the manner in which the question is brought to the view of the court, been fairly understood, and the interests of all persons concerned therein, fully developed, and sufficiently explained.

Waties, and Bav, Justices,

dissented. They held that, in a case like this, there was no necessity for an administration. That it was a case peculiarly circumstanced, and might, be safely, and conveniently, considered as an exception to the general rule. That every end was answered by Mrs. M’Grew’s taking and keeping possession of the property under the authority of the act of 1791, which could have been answered by an administration. That wherever this could be done, an administratioa ought not to be required. For the law requires nothing which is vain, and perfectly useless. The law requiring administrators,' in such cases, is a mere caput mortuum. If an administrator should have gotten possession of the effects, and refused to do justice, a Court of Equity would interpose for the relief of the next of kin. In this case, at best, the plaintiff can have only a naked right, without any equity or justice, — a right founded in strict law. If he should prevail, it would be a triumph of strict law over reason and justice. The law ought never to be suffered to produce such a mortifying and injurious effect. The reason of the law ceasing, the law ought also to cease.

Note. See 4 East. 446, in a case of an executor de son tort, administering. Lord Ellenborough says, — if this defence could be maintained, the whole system of administration of an intestate’s effects would be put an end to, and instead thereof an authorized scramble introduced by law, among the creditors for priority of payment, where the assets were insufficient. iVlouni'ord v. Gibson. See Cooper’s J ustinian, p. 83. Inst Lib. 9, tit 1, sec. 37. Qumsunt in fructu. ’ilie offspring of a female slave cannot be considered as articles of produce, as milk, skins, wool, and the young of animals, but belongs to the proprietor of the mother.

It was their opinion, also, that the statute of limitations was a good bar to the plaintiff’s recovery, although the four years had not run from the granting of letters of administration ; because the act had attached before the grant of letters, of administration, and had run against the Ordinary.  