
    Peter O’Neal, Adm., v. Jane Oates.
    An administrator has no right to claim from an heir the delivery and possession of property of which the heir became an undivided proprietor with his co-heirs on the death of the common ancestor; without suggestion, or proof that such property is necessary for the payment of the debts of the succession.
    Appeal from the District Court, Sixth District, Robertson, J.
    
      Herron and Oil, for plaintiff and appellant.
    
      Bunn, for defendant.
   Dunbar, J.

This is an action instituted by Peter O'Heal, as administrator of the succession of Haney Oates, to recover from the defendant a negro woman and child, which he avers to be the property of the estate, and hire for their detention. The defendant pleads that she holds possession of these slaves as tutrix of her minor son, William Thomas Oates, issue of her marriage with Henry Oates, who was the son of Haney. That the said Haney had in her life time divided her negroes amongst her children, and that to her son Henry she gave the slaves in controversy by way of advancement. She specially denies the right of the administrator to take this property out of her possession. That there are no debts to be paid; that if there are, she is ready, on behalf of her child, to give security therefor, and that the heirs of Haney Oates alone, by an action of Partition, have any right to call in question her child’s title to the property. There was judgment in her favor, and the administrator has appealed. The original ownership of the slaves by Haney Oates is admitted, and the heir-ship of the minor child of the present defendant, by representation, is also conceded. No proof has been offered, nor indeed has any allegation been made that the succession of Haney Oates is in debt. Under the circumstances the appointment of an administrator seems to have been unnecessary. Admitting, however, that it was, this Court held in the case of Davis v. Demis, 5th Annual, 561, that the administrator of an estate has no right to sue an heir upon a debt due by him to the estate, and compel him to bring the money into Court, where there is neither suggestion nor proof that it is necessary for the payment of the debts of the succession. So in like manner, neither has an administrator the right to sue the heir for the delivery and possession of property, of which he became an undivided proprietor with his co-heirs upon the death of the common ancestor. O. C., 1214. It is a question to bo settled amongst the heirs themselves on a partition of the estate. From the evidence it would seem that Nancy Oates divided her negroes amongst her children in her lifetime, and that the present plaintiff, who was her son, received one. If there was any inequality it can be adjusted in the manner pointed out by law.

This view of the case renders it unnecessary for us to express any opinion on the Bill of Exceptions taken by plaintiff on the trial.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court bo affirmed with costs.  