
    R. W. Harper, et uxor, vs. Richard T. Archer, et al. Guardians of S. E. Archer.
    An appeal bond, on appeal from the decision of the probate court, payable to the parties, is erroneous ; it must be payable to the judge of probate.
    An infant is in esse, from the time of conception, for the purpose of taking any estate which is for his benefit, whether by descent, devise, or under the statute of distributions, provided the infant be born alive and after such a period of foetal existence, that its continuance in life might be reasonably expected.
    The right of an unborn infant to take property by descent or otherwise, from the date of its conception is an inchoate right which will not be completed by a premature birth.
    A was born eight months and twenty-one days after the death of his sister ;
    
      Held to be entitled to his distributive portion of her estate.
    The relative righs of husband or wife surviving upon the death of either, discussed and decided in Wade v. Grimes, 7 How. Rep. 425; which is confirmed.
    On appeal from the probate court of Claiborne county.
    At the March term, 1842, of the probate court of Claiborne county, Richard T. Archer and' William Eggleston, guardians of Stephen Edward Archer, filed their petition in that court, exhibiting the following statements ; that in the month of-, A. D. 1827, Edward F. Barnes died intestate, possessed of certain real and personal property. His widow, now Mrs. Catherine C. Harper, and one child, Eliza F. Barnes, survived him; that this child inherited one half of his personal property, which is specifically described in the petition and which had never been divided; . that in the month of July, A. D. 1835, this child, Eliza F., died unmarried and intestate; that Stephen Edward Archer was the son of said Catherine C. and of Stephen C. Archer, since deceased, (who had intermarried,) and was the brother of the half blood of Eliza F. Barnes, and was born on the first day of March, A. D. 1836, and inherited her property. That Robert W. Harper had intermarried with the widow and was with the widow made a defendant to the petition.
    The defendants to the petition appeared and answered it; they admitted all the allegations of the petition except the inheritable relationship of Stephen Edward Archer to Eliza F. Barnes. They admitted he was the son of Mrs. Catherine Barnes by Stephen C. Archer, a subsequent and deceased husband, but deny the relation between the children, for the reason that Eliza F. Barnes had been dead seven months and twenty-one days before the -birth of Stephen Edward. They alleged that the estate of Edward F. Barnes remained to be distributed, and they claimed that the distributive share of his widow, now Mrs. Harper, had survived to her as widow, which they prayed might be assigned to her.
    The court below, upon the petitiop and answer, after advisement, made the following decree : “ The court doth order, adjudge and decree, that division of the personal property embraced in said petition be made between the administrators of Stephen C. Archer, deceased, and the said Stephen Edward Archer, &c.” From this appeal a decree was prayed; an appeal bond, executed to William Eggleston and Richard T. Harper, guardians, &c., and the appeal prosecuted.
    
      J. B. Thrasher, for appellants.
    Five errors have been assigned by the appellants, to reverse the decree of the probate court; and yet the merits and demerits of the whole five may with propriety be considered under the first, which .seems to involve the doctrine of the whole, to wit; that the said court of probate erred in decreeing that a division of the property mentioned in the petition should be made between the then administrators of Stephen C. Archer, deceased, and the said Stephen Edward Archer.
    This assignment of error questions the right of Stephen Edward to a distributive share of the estate of Edward F. Barnes, deceased, by virtue of being a half brother of Eliza F. Barnes, daughter of the said Edward. The answer denies that he is a half brother; as such entitled to inherit, and alleges that he was born seven months and twenty-one days after the death of the said Eliza. It also questions the right of the administrators of Stephen C. Archer, deceased,'to a distributive share of the estate of Edward P. Barnes, in exclusion of the widow, (now the appellant, Mrs. Harper.)
    First, then, let it be kept in mind, that it is the undivided estate of Edward F. Barnes, deceased, who died intestate, that is to be distributed, according to the statute of this state. H. & H. 393, sec. 31; and 394, sec. 33, and 406, sec. 70. We are here met with an insuperable objection to the decree of the probate court, in the very commencement of our investigation, to wit; that the proper parties are not before the court — that the administrator of Edward F. Barnes, deceased, is not, but ought to be a party, and that the distributive share of Eliza F. Barnes, deceased, in the estate of Edward F. Barnes, can only be recovered by an administrator on the estate of the said Eliza; therefore, that the administrator of Eliza F. Barnes, deceased, ought to be made a party, and that for want of such parties alone, the decree must be reversed.
    The judge of probate has no power or authority under the laws of this state to decree distribution of an intestate’s estate, except through the intervention of an administrator. H. & H. 406, sec. 70, lays down the rule of law thus: “Any person entitled to the distribution of an intestate’s estate, may, at any time after the expiration of twelve months from granting the letters of administration, petition the orphan’s court of the proper county, setting forth his claim, whereupon it shall be the duty of said court, to grant a rule on the administrator or administrators, to make the distribution agreeably to law.”
    This statute is imperative, and leaves no discretion to the probate judge to distribute the estate of an intestate in any other manner than by a rule on the administrator, who is by law to make the distribution; hence it follows, that there must be an administrator before there can be a rule upon an administrator to make the distribution contemplated by the statute. The statute having prescribed a remedy, and pointed out a mode of proceeding, that mode must be strictly complied with. 19 Johnson’s R. 42, 43; 1 Dana, 400; 1 Peters, 356; 20 Wendell, 250. The rule of law, however, goes further, and declares that “ Every statute that limits a thing to be done in a particular form, although it be done in the affirmative, includes in itself a negative, namely, that it shall not be otherwise. Plowd. Comm. 113; 1 Cond. R. 357, note; 1 Paine, 406. But, that there must be an administrator, and that the administrator must be a party, where an intestate’s estate is sought to be distributed, or a distributive share of an intestate’s estate is sought to be recovered — is a rule of law well settled. See 4 Paige’s R. 51; 2 lb. 16; 2 McCord’s Ch. R. 169 ; 5 Monroe’s R. 574; 7 lb. 217; 4 Littell’s R. 265.
    But how do the administrators of Stephen C. Archer, deceased, become entitled to a distributive share in the estate of Edward F. Barnes, deceased, who died intestate? Stephen C. Archer was not the son of Edward F. Barnes, deceased, nor the descendant of one ; he was not his brother, nor descended from one ; neither was he his father, nor the next of kin. How then does he become entitled as distributee ? The petition sets out no right in Stephen C. Archer, and consequently his administrators have none. The record shows that the appellant, (Mrs. Harper) and Eliza F. Barnes, deceased, were the distributees. And the answer of the appellants prove that Mrs. Harper is still the distributee — that her distributive share in the undivided estate of her former husband, (Edward F. Barnes, deceased,) has survived to her — if it is still the estate of Edward F. Barnes, to be distributed, she is unquestionably a legal distributee; but it is said in pais, that she was married to Stephen C. Archer, and that her distributive portion in the estate of Edward.F. Barnes goes to his administrators; and that they, though strangers, become the distributees of Edward F. Barnes, and that the distributive portion of Eliza F. Barnes, goes to Stephen Edward Archer, who is charged in the petition to be her half brother; and that thereby he, though unconnected with the blood of the ancestor, becomes the distributee in the estate of Edward F. Barnes.
    Thus the entire undivided estate of Edward F.'Barnes,.according to the decree of the probate court, passes from the blood of the ancestor whose estate is to be distributed, into the hands of strangers, and becomes a kind of heir-loom to the Archer family, not by regular transmutation, but under the statute of descent, as proximo de sanguine. Can such be a fair construction of the statute? The estate of Edward F. Barnes, deceased, is to be distributed for the first time, under the statute of distribution. H. & H. 393.
    Both the petition and answer represent the estate to be that of Edward F. Barnes, that is to be distributed for the first time; we admit, therefore, for argument, that Mrs. Harper was married to Stephen C. Archer, yet the record shows that she survived him, and that her distributive portion in the estate of Edward F. Barnes, was never set off, and allotted to her in the lifetime of Stephen C. Archer, and that consequently it survives to her, and does not go to Archer’s administrators. This is beyond all doubt the common law, both of England and America. If the husband does not dispose of the wife’s choses in action during coverture, he cannot dispose of them at all, for he cannot devise them, though he may assign them for a valuable consideration, and if he die before any disposal of them they will go to the wife if she be living, and if she be dead they Will go to her representative, (Reeve’s Domestic Relations, 4, 5) — though the rule may be otherwise where the husband survives the wife, under the statute 29 Car. II., or where there are similar statutes, but not at common law. Reeve’s Domestic Relations, 13, 14, 15, 16, 17. 18 and 19. That the choses of the wife, if not reduced to possession during coverture, nor disposed of by the husband, survives to the wife in case she survives her husband, is believed to be unquestioned and unquestionable. 1 J. J. Marshall; 380; Mad. Ch. 381,382, 383; 3 Bacon’s Ab. 65; 1 Chitty, 18,19 and 20 ; Bingham, 210; 3 Bibb, 490 ; 3 Littell, 282; 4 H. & M. 453; 1 Pirtle, 507; 5 Johnson’s Ch. R. 206; 1 Yerger’s R. 413, and 2 Black. Comm. 433.
    A fiduciary possession, or possession as trustee, has never been considered such a possession as would vest the choses of the wife in the administrators of the husband, in case she survives him. The petition does not charge that Stephen C. Archer, as husband, ever had possession of the distributive share of Mrs. Harper. Much less the kind of possession, but both the petition and answer allege that it is still the undivided estate of Edward F. Barnes, in solido, consequently that neither Stephen C. Archer, nor any other person, ever reduced it to possession in their own fight, or that they ever had any other than a fiduciary possession or possession as trustee; for the law is thought to be well settled, that whosoever holds the undivided estate of a deceased person, holds it as a trustee for the creditors and distributees, until legal distribution is made. 12 Yesey, 497; 16 lb. 413.
    In the case of Shuyler v. Hoyle, Chancellor Kent says, “ That there is not even color for the pretension, that the assets of the intestate which were in the hands of his administrators on the death of S. were to be considered as no longer things in action, but as actually reduced to the husband’s possession, so as to cut off the right of survivorship in the wife.” 5 Johnson’s Ch. R. 206, 212. In the case of Baker v. Hall, 12 Yesey, 497, the husband, as executor, took possession of the real and personal estate of the testator; his wife was a residuary devisee; but as the husband took possession in the character of trustee and executor of the will, and not as husband, the Master of the Rolls held, that the wife’s share of the residue of the personal estate, could not be considered sufficiently reduced into possession, so as to prevent its surviving to her upon the husband’s decease. In Wall v. Tomlinson, if was decided that a transfer of the wife’s stock to the husband, merely as trustee, was not such a reduction into possession, as would bar her right of survivorship. 16 Yesey’s R. 413. And in the case of Wallace, et ux. v. Toliaferro, Judge Roane, in delivering the opinion of the court says; “That possession as executor and husband, is not sufficient to prevent the right of survivorship in the wife to slaves, and that if the husband was in possession not as execu,tor, it was illegal without the executor’s assent, and that the slaves would survive to the wife if she survived her husband. 2 Call’s R. 471; 1 Hen. & Mun. 214. In this case W. R. made his will, and devised to L. W. and to C. T., his daughters, sundry slaves, subject to the payment of his debts, and appointed J. W. and R. T., the husbands of his daughters, hi& executors, who qualified as such, and took possession of the slaves j one of them, to wit, J. W., died before the estate was divided, and the court decided, that his wife’s legacy in the estate of her father, which was in possession of her husband as executor, survived to the wife; vide 474, 475 and 485.
    In the case of Gregory's Administrator v. Mark's Administrator, reported in 1 Randolph’s R. 355, a man died intestate, leaving a widow and three infant children. The widow married a second husband. Two of the children died under age, leaving the slaves, devised from their father, to be divided between their mother and the surviving child. The mother and her second husband brought a friendly suit in chancery against the administrator and surviving child of the first husband, to obtain a division of the slaves. Commissioners were appointed to make the division, who performed that duty; but their report was never returned. The slaves remained on a plantation in possession of the second husband and his wife, who worked them as their own, called them their own, and treated them as such. In this state of things the second husband died. His administrator brought a suit to recover the slaves so assigned to the wife, as being vested in him by virtue of his marriage; but the court decided, that under the circumstances of the case the husband did not acquire a right to the slaves; vide 374. This was a much stronger case in favor of the husband’s administrator than the case at bar, for the record shows that no attempt has ever been made to divide the estate, but that the property in controversy is still the undivided estate of Edward F. Barnes, yet to be distributed.
    In Irvin v. Divine, reported in 7 Monroe’s Rep. 246, the contest was about slaves, but the husband had survived the wife, in which case the rule is different; yet the court say: If the wife had survived, the slaves would have remained to her, and could not have gone to the personal representative of the husband, as the husband never reduced them to possession during the coverture.
    The case of Kellar’s Executors v. Beelor, reported in 5 Monroe, 575, was in like manner a contest for a distributive share of an intestate’s estate, including slaves; in which the court say, “ It was erroneous to decree to the executors of the husband. It was a chose in action belonging to the wife on the marriage, and was never reduced to possession during the marriage ; consequently it passed to the wife as survivor, and the wife being dead, her representative alone was entitled thereto.”
    In the case of Relly v. Haggin, 3 J. J. Marshall, 215, Mrs. Elliot,, a married woman, was entitled to a distributive share in the slaves of her deceased father, and being so entitled, her husband and self were in possession of said slaves by express assent of her father’s executor, who sent them the slaves for the benefit of Mrs. Elliot; in this condition of the slaves, execution issued on a judgment against her husband, and was levied on the slaves as the property of the husband. The court decided, that the slaves neither belonged to Mrs. Elliot nor to her husband, before allotment by commissioners; that the joint interest of the wife did not vest in the husband, until by distribution that interest had been reduced to unity and identity; and such seems to have been the uniform course of decisions in all courts.
    In the case of Harleston’s Administrator v. Lynchs Executors, 1 Dessau. Rep. 244, a brother devised to his sisters the residue of his estate. One of them married, and her husband died before the will was proved, or any division made of her brother’s estate. The husband not having reduced the estate to possession, the court decided that his representatives could not take it, but that it survived to the wife.
    If slaves, specifically devised, be in possession of a person who is at the same time executor of the testator, and husband of the legatee, such possession will enure to him in his character of executor only. Blaky v. Naivley’s Administrator, 6 Munf. 64. In the case of The Guardian of Elens v. Hughes, 3 Dessau. 161, the court say, “Although the husband possess himself, as executor or administrator, or in right of his wife as such, of property, to a share of which his wife is entitled, this is not such a reduction of his wife’s interest into possession, as to vest it in him jure mariti, and if she dies before proper division, it will go to her heirs.”
    
      The foregoing authorities are thought to be conclusive on the right of survivorship in the wife, whether Stephen C. Archer ever was in possession of the undivided estate of Edward F. Barnes, or not; so long as it remained the estate of Edward F. Barnes, it could not be the estate of any other person, and therefore the distributive share of Mrs. Harper never could vest in Stephen C. Archer in his'lifetime, as it is still the undivided estate of Edward F. Barnes, to be distributed for the first time, and not having been distributed in the lifetime of-Stephen G. Archer, it survives to Mrs. Harper. It is said, however, by the counsel for the appellees, that the question of survivorship is not open for discussion ; that it has been settled in the cases of Cable's Heirs v. Martin Sf Bell, 1 Howard, 558, and of Lawry v. Houston, 3 Howard, 394. The question presented by the record in the case at bar, where the wife survived the husband, was not before the court, either in the case of Cable v. Martin Sj%Bell, or of Lawry v. Houston.
    
    In the case of Cable's Heirs v. Martin <Sf Bell, the husband survived the wife, in which case the rule of law has been differently settled; and, in addition to this, Bell had sold his wife’s distributive share to innocent purchasers, in which case the rule of law is also different. These distinctions will be found to run through all the books without exception. While, on the other hand, if the wife survives the husband, there is no exception to the rule, that- her choses or’ distributive share in the estate to which she is entitled, not reduced to possession by the husband during coverture, survives to her, and does not go to the husband’s representatives. In the case of Lawry v. Houston, the husband in like manner survived the wife, and had sold her legacy for a valuable consideration, so that there is no analogy between those cases and the case at bar.
    This, we conceive, disposes of the case, conceding that Stephen C. Archer was married to Mrs. Harper, and resided on the plantation of Edward F. Barnes, deceased, for a time, with the widow; with whom he had intermarried, and managed for a time the undivided estate of said Barnes, but died before any division of said estate took place. The court therefore erred in decreeing distribution, without having the administrator of Edward F. Barnes, deceased, and of Eliza F. Barnes, deceased, before the court; also, in decreeing against the appellant, Mrs. Harper, and in decreeing in favor of the administrator of Stephen C. Archer, and in favor of Stephen Edward Archer, the answer denying that said Stephen Edward was a half-brother, as such entitled to inherit; having been born seven months and twenty-one days after the death of Eliza F. Barnes, was, at the time of her death, non animax, and incapable of inheriting.
   Mr. Justice Clayton

delivered the opinion of the court.

This cause will have to be dismissed on account of a defect in the appeal bond. It is an appeal from the probate court of Claiborne county, and the bond is made payable to the parties, instead of the judge of probate, as required by the statute. Twelve months ago we decided that, in such case the jurisdiction of this court did not attach, and that all we could do was to strike the cause from the docket. Whiting v. Green, not reported. A similar course must be pursued on the present occasion.

But as we had examined the points made in argument, before this defect was perceived, it may save the parties future costs and litigation, if we state the result of that examination.

The question as to the relative rights of husband or wife surviving upon the death of either, was so fully discussed in the case of Wade v. Grimes, 7 Howard, 425, that we shall content ourselves with a bare reference to it, so far as that point is involved.

The right of the infant petitioner to a distributive share of the estate of his half-sister, is the prominent question in the cause. He was born eight months and twenty-one days after her death, and the point of inquiry is, whether he was at that time in existence, so as to enable him to take.

Nine months is the usual period of gestation, and we think it right to place the commencement of foetal existence to that period before birth. It was formerly a question at what time the embryo might be said to be alive, and quickening was selected as the surest test of life, and the earliest point of time at which it could be deemed to be in existence. But it is now settled, both in England and in this country, that from the time of conception the infant is in esse, for the purpose of taking any estate which is for his benefit, whether by descent, devise, or under the statute of distributions, provided, however, that the infant be born alive, and after such a period of foetal existence that its continuance in life might be reasonably expected. A premature birth would not be regarded as of a character to give completeness to the inchoate right. 2 Paige, 35; 5 Serg. & Raw. 38; 4 Kent, 248; 2 Ath. 117; Williamson Exec. 1066; Chitty Med. Juris. 403; Beck, 317.

We are of opinion, therefore, that in this case the infant was entitled to take. The case, however, must be stricken from the docket, but the parties will have right to bring it up by writ of error, if they choose so to do.

Cause dismissed for want of jurisdiction.  