
    *R. Bradford v. A. Felder.
    The next of kin to a deceased person cannot maintain a suit in equity for the recovery of property without administering-, though he be exclusively entitled. If he take possession and make dispositions, such acting will be disallowed. The decree suspended and leave given to the complainant to take out administration and to state it byway of amendment.
    Ann Clarke by her will gave several negroes to Ann Coulietle for life, and at her death, without issue living, then over to William Bradford an infant. Ann Coulietle married the defendant Felder, and died without having had children. William Bradford before he came of age also died, and this bill was filed by the complainant, hi.s next of kin, against the defendant Bradford for the delivery of these ne-groes, and for an account of hire, &c., since the death of his wife, the tenant for life. The defendant demurred, on the ground that the complainant could not file his bill until he took out administration; and that was the only point made in the cause.
    Chancellor DeSaussure held that the bill might be well brought. It had been the practice of this State in similar cases.
    The defendant appealed.
    Chappell, for Felder,
    submitted the case on the part of the appellants.
    M’Cord, for the appellee.
    Generally the law requires administration to be taken out in order to constitute one the legal representative of an intestate person. The statute of Charles, commonly called the Statute of Distributions, requires it. Nothing vests in the next of kin, under that statute, except through the administrator. But our statute of intestacy puts personal property on *the same footing with that of real estate, and vests the right thereto immediately in the next of kin. Administration under our act is only necessary in case of creditors to protect them, and to make equal distribution among several, should there be more than one of the next of kin. The only reason for the rule then was to have the funds properly applied to the payment of debts, or justly distributed among the next of kin. But here young Bradford died when but ten years of age, and left no other relation than Richard Felder of the same proximity of blood; there could therefore be no debts to be paid, nor any distribution to be made. It all belonged to the complainant; and why put him to the expense of administration? A distributee under the statute is in some cases regarded as the legatee of the law. Holt, C. J., in 4 Burn’s Ecc. Law, 429, is made to say, “A person entitled to distribution under the act of 22 Ch. II. is in consequence entitled to sue for an account as a legatee was; for the next of kin is a legatee by the statute, and as a statute legatee he shall have the same remedy as the other legatee might before the statute.” A legatee, under a bill to which there was no executor and no administration, might sue for a specific legacy against another holding the legacy in a fiduciary situation, as in this case of the tenant for life. 2 Kaimes’s Eq. 71, 72, 73, 412, 415. However, if the bill was incorrectly brought in such cases, the court will suspend the decree and give leave to the complainant to take out administration and to amend his bill. But it was believed that the complainant was actually the administrator.
   Curia, per

Nott, J.

The only question arising out of the decree in this case is, whether the next of kin to a deceased person can maintain an action in the court of equity for the recovery of property without administration.* In the case of Farley v. Farley, 1 M’Cord’s Cha. Rep. 506, this court dismissed the bill on the ground, that no administration had been granted. In the case of Gregory v. Forrester, decided at the last December term, (ante Vol. I, 318,) the same opinion was expressed. In those cases the subject was well considered; and we felt bound to come to that conclusion. The next of kin is entitled to the administration, and may always administer before bringing his bill. Great difficulties may arise from allowing a contrary practice. It is said such proceedings have been allowed in our courts; but I have looked over all our equity reports, and can find no such case. In the case of Elders v. Vauters, 4 Desaus. Rep. 155, decided in the year 1811, the court would not permit the complainant to retain á slave which he bought from the next kin, though it was admitted that the debts were all paid, and although he held under a bill of sale purporting to be for a valuable consideration, and had been ten years in possession.

Chancellor DeSaussure, in his index, states the purport of that decree in the following words: “It is irregular for a person, though exclusively entitled to the estate of an intestate, to take possession and make dispositions without administering; and such acting will be disallowed.” 4 Desaus. Rep. Index, pl. 11. Tit. Executors and Administrators.

It appears to me, therefore, that the decisions of this court have not only been conformable to the general principles of law, but to the decisions which had previously prevailed in the courts of equity of this State. The decree, therefore, must be overruled. It is suggested, however, that the complainant is, in fact, administrator. If so, he may have leave to mend his bill so as to correspond with the fact. In the case of Humphries v. Humphries, 3 P. Wms. 347, where the next of kin had brought a bill without administering, the Lord Chancellor* allowed the demurrer, and then gave the complainant leave to takeout administration, and charge it by way of amendment to the bill. Let the complainant, therefore, have leave to amend his bill.

Leave given to amend.  