
    Bufford and others v. Holliman and Wife.
    Where the deceased bequeathed to his wife the lot where she lived, several negroes, cattle, hogs, &c., during her natural life, and at her death “to become the property of my own children, as well as of Alfred, my wife’s son,” it was held that the remainder vested at the death of the testator, and that, therefore, the interests of those of the remaindermen who died before the wife did not lapse in favor of the survivors, but descended to their heirs.
    Where there is a legacy, with a remainder over, and the legacy passes to the first taker, in a suit afterwards brought by the remainderman to recover the legacy it is not necessary to aver a grant of administration on the estate of the testator nor to make his representatives parties.
    The difference between the right of an administrator to the property of an estate under the English systsin of jurisprudence and the statutes of this State discussed.
    Where but a limited period has elapsed since the death of the deceased it would be inconvenient, as a general rule, to permit legatees or distributees to sue strangers for personal property,* not for the reason that they are not really the owners and have no certain interest until after administration, but as there is a presumption of the existence of debts, and as they have a prior claim, it is more convenient that the succession bo controlled by one responsible agent representing the rights of all interested, and preparing it, aft or being relieved from incumbrances, for distribution among the rightful owners. But where time is permitted lo run on, where the creditors, if any, will not take measures to enforce payment, the presumption arises that there are no debts; and the reai owners in possession of the property, or having rights thereto, cannot ho disturbed in their posses*-sions or thwarted in their actions by attempts at administration for the benefit of creditors whose claims, by their own laches and neglect, have boon forfeited. (Note 102.)
    In the absence of allegation and proof of the laws of another State, the rights of the parties, arising out of the facts alleged, or alleged and proved, must bo determined by the laws of this State.
    Appeal from Shelby. On the 10th clay of April, 1814, Taney Thornton departed this life in the State of Tennessee, having on the same clay executed his will, by which he appointed his wife, Amelia,"and Join) Allen his executrix and executor, and, among' other devises and legacies, bequeathed to liis said wife, Amelia, the house aiicl lot where she lived, several negroes, among-whom was one named Phcebe, cattle, hogs, &c., during her natural life, and at lier death to “"become the property of my own children, as well as-“of Alfred, my wife's son.” The petition averred that tiie wife, Amelia, immediately after the death of tiie husband and testator, took possession of the property embraced in tlui bequest, and at her death, in January, 1843, in the Republic of Texas, she. still had Phcebe, one of the slaves, with her increase, in her possession, and (hat since her death the said Phcebe, with her children and grand-children, had remained in possession of the appellees, 3tl. P. Ilolli-manaml Iiliza, his wife. The said Eliza was tiie only surviving child of the testator, Yaney Thornton. His other children, viz: Harriet and Patsy and step-son, Alfred, departed this life long before tiie deatli of tiie said Amelia. Harriot and Alfred died in 1830, unmarried, without wills and without issue. Patsy ivas, at llie time of tiie execution of the will and death of her father, the said Yaney, intermarried with oue William Bufford, and she died in 1821,. leaving her husband surviving, who did not die until 1844, which was subsequent to tiie deatli of Amelia, tiie tenant for life. The issue of the said William anil Patsy Bufford were Yaney T. Bufford, who died in 184-2, (before the death of the said Amelia,) without issue; Samuel T. Bufford, William C. Buf-ford, and Minerva Blanton, wife of Henry Blanton; and these were averred in the petition to he then, and at the death of ¡lie said Patsy, the only heirs of the said Pat^y and William Bufford, and as such they claimed that, under the bequest, they were entitled to one-half of the said slave Phcebe and her increase 1. And it was further averred that the above-named William 0. Buf-ford did, in 1844, duly transfer to John Hinson, one of the petitioners, all his-right, tillo, and interest in the slaves in controversy. Tiie petition was filed in 1845, and, after setting forth tiie above and other facts, prayed for a writ of partition, &c. Tiie defendants, viz: Eliza, the surviving daughter of the testator, and her husband, M. P. Holliman, demurred, and also answered to-the farts of the petition.
    The. demurrer was sustained and the petition dismissed. There were various special causes or grounds of the motion to dismiss, of which it was said in (lie brief of the appellants that the following were relied upon by the appellees in tiie court below and were tiie grounds upon which the demurrer was rust ¡lined, viz :
    1st. That the petition does not show that administration had been granted, on the estate of Yaney Thornton to any oue, nor has such administrator been made a party to this suit.
    2d. That the petition does not allege a grant of administration upon the estates of Harriet Thornton, Alfred Thornton, and Amelia Thornton, nor of' Patsy, or of William Bufford, her husband, or that any portion of their respective legacies under the will liad been adjudged to them by any court of competent'jurisdiction, nor have the representatives of these persons, or any of them, been made parties to tiie suit.
    
      J. I’. Henderson and J. iff. Ardrei/, for appellants.
    I. The appellants contend that tiie court erred in sustaining tiie exceptions to tiie petition.
    The points of exception that were relied upon by tiie defendants in the ■efturt below, anil upon which tiie court sustained the. demurrer, are, 4lh exception in lili1 demurrer, filed 5th September, 1850, which is as follows: That the bill of plaintiff does not show that administration has been granted upon the. cslate of YanoyTiiorntou to anyone, nor has any such administrator been made a party to this suit; and, 5th exception, because the bill does not show that administration lias been granted upon the estate of Harriet Thornton, Patsy Bufford. and William Bufford, and that their or any part of either of their legacies or portions of the estate of said Yaney Thornton’s estate had been decreed or adjudged to them, said plaintiffs, by the proper tribunal having jurisdiction over said matters, nor have the representatives of said parties been made parties to this suit.
    Upon the first exception it is shown that in the-petition it is averred that letters testamentary upon the estate of Yancy Thornton were granted to Amelia Thornton and John Allen, executors. It is averred that Amelia Thornton was in possession of the negro woman Phoebe, and brought her to Texas, and remained in her possession until her death, and the possession of the tenant for life was the possession of the remaindermen, and there was no necessity for the legal representatives of Yancy Thornton to be made parties to this partition, for the presumption o'f law is, that the tenant for the life estate being executrix of the will and testament of Yancy Thornton, and in possession of the property, she held it hr subordination to the will.
    II. Then, upon the second exception, as the plaintiffs derive title by descent and distribution to the property which they claim in partition, against defendants through Alfred Thornton, their uncle, and Harriet Thornton their aunt, and Patsy Bufford, their mother, the question is presented whether it was necessary that there should have been a grant of administration upon their respective estates, and a decree for distribution by the Probate Court of the place of their domicile to the present plaintiffs, in order to enable them to maintain the present action.
    The remaindermen, Alfred Thornton, Harriet Thornton, and Patsjr Bufford, departed life before the termination of the life estate by the death of Amelia Thornton in 1843, and it is not thought to be material to discuss the question whether the estate in remainder lapsed by their death with a right of survivor-ship in the defendant Eliza Holliman, for, as the will is set out, it does not appear that such was the limitation affixed to it by the donor. And unless such was the case the plaintiffs would take by representation to the heir they stand for, and the result would be the same.
    The appellants beg leave to call the attention of the court to the case decided bjr them of McIntyre v. Chappell, in which it is thought that the question raised by defendants’ exception has been determined and settled, and it is hoped that counsel will not he considered as vain and presumptuous in offering some considerations upon the subject in aid of that decision. We do not think that the laws of Tennessee will govern as to the remedy which is sought for the enforcement of rights that accrued under the laws of Tennessee, and that it was not necessary to have specially pleaded those laws. They were facts to he given in evidence to the court and jury upon the trial of the cause.
    We contend that under our system of jurisprudence a grant of administration creates only a title in trust to the real and personal property which a party dies seized of in the administrator, first for the benefit of creditors of the deceased, and if there be no debts then to the next of kin, under our statute of distribution and descent. Our system of law establishes a medium principle between the common-law regulation of title to personal property and that of real property. Our courts recognize trust estates as well as legal estates, and enforce them according to the interest in the property and the relation that it has to the persons who claim to own it. It will be admitted that by the common law, upon the grant of administration to an intestate’s estate, it vested a title to all the personal property in the administrator, and that for a long time tlie administrator took it as his own property, without any liability to account for it to any one after the payment of the intestate’s debts, until tlie statute of distributions was passed. (3 Watts R., 80S.)
    After the passage of that statute then tlie administrator was required to pay from the assets thus derived to him, first, tlie debts of the intestate, and then to deliver over the remainder to tlie next of kin of the intestate. From this period of timo a distinction was made and recognized in the courts of common-law and equity between the legal and equitable title in the administrator and tlie next of kin. Whenever any action had to be brought for the recovery of personal property against a party who had no title to it, it had to he prosecuted in the name of tlie administrator in the common-law courts. And they would not recognize the title of the next of kin, which they held to he only an equitable title, until ho had obtained a title from tlie administrator by a decree of distribution and the delivery of tlie possession of the property under it. The common-law theory was that tlie legal title was vested in the administrator, and that it continued to remain in him until it passed from him by a delivery of tlie property under the decree of tlie court for distribution, and vested in tlie next of kin in tlie nature of gift by operation of law. But with regard to real estate tlie rule of the common-law under tlie law of descent was entirely different; and in that particular real estate never went to tlie personal representative, but to tlie heir. Aud tlie law of descents, immediately upon the death •of a party seized, cast tlie legal title to the realty upon the heirs-at-law. And whenever actions had to be brought for the recovery of realty, then tlie suit was prosecuted in tlie mime of tlie heir, and not tlie legal representative. Tinder that system of law lands were never elnirgeable with tlie debts of the intestate, but'only the personalty, with some few exceptions.
    But under our system of jurisprudence there does not exist any distinction between realty aud personalty so far as administration is concerned. And both are equally chargeable with debts in his hands, aud our courts recognize no distinction between legal and equitable rights, with respect to the remedies that our courts will apply to those rights. Whatever a right may be, whether denominated a legal or au equitable one by the common iaw, it will be recognized and protected in our courts without any distinction as to courts of law or equity. As our statute of descent and distribution is one and tlie same act, and furnishes the same rule for tlie disposition of property, whether real or personal, and casts it upon tlie same individual, the common-law theories, as to rights and remedies in this particular class of cases, is inapplicable.
    Tlie courts of common law refused to recoguize the title of the next of kin, previous to decree for distribution, because of tlie technical doctrine of those courts that the interest and title of tlie next of kin was only a trust estate, which, for want of jurisdiction, they could not take cognizance of. But our court cannot decline jurisdiction on that account.
    The abolition of these technical distinctions, recognized by the common law, and the courts having its forms of action and precedents, would necessarily cause a change, so far as they were inapplicable to our courts administrating the law of remedy without any technical or artificial restriction. Ho valid objection could be taken, it seems to us, by any one. And the only persons who can complain are the creditors of an estate who have prior aud superior demands upon tlie property of an intestate. But if they permit the next of kin to take possession of property without proceeding to administration, (as creditors, under our system of administration, have the’’right to administration, if the next of kin will not do so for their own benefit aud protection,) then creditors have no right to complain that the heirs and next of kin should present themselves in court and demand a restitution of their rights. And it certainly cannot be claimed that it would constitute a just defense to a wrongdoer, who unjustly withholds tlie possession of property belonging to persons who liad acquired a title to it by our statute of descent aud distribution, because the creditors had neglected to enforce their legal remedy by the competent means in their power.
    As this was the point of exception presented in the court below, and there relied upou by counsel and sustained by the court, counsel have not thought it proper to meet any other objections*without having their attention called to them. The special causes stated in the exception are all immaterial, and would be a waste of time in showing that they are groundless.
    
      A. W. O. Hides, for appellees.
    I. We contend that tlie appellants have not shown any right to the property. If they are entitled to any portion of the negroes that right is derived through and by virtue of foreign laws which are •not judicially known to the courts of this State, but can only be exe-cuter! when averred and proved as other facts. (2 Stavlcie Ev., 331 aud notes; Dallam, 530; 1 Tex. It., 12; 2 Id., 348; 6 Peters, 708.)
    II. But a proper construction of the first item in the will under which they claim, by the rides and principles of common law, it is believed, will he equally fatal to the rights of the appellants. The intention of the testator is the true-criterion in expounding that item, unless that would conflict with some positive principle of law. (Hart. & Yerg., Temí. 11., 302; 4 Kent Com., 537; 2 vol. Preston on Estates, 08.) Then'who did the testator intend to have this property at his wife’s death? lie says: “ And at her death become the property of my own children, as well as Alfred, my wife’s son.” We contend that the testator intended by this clause to confine his bounty to such of his-own children as should be living' at the death of his wife, and to his wife’s son, if he should then be alive. That it was necessarily uncertain whether all, and if not all, which of them, would survive that period, and the person who would survive being uncertain, the legacy was a contingent remainder, and did not vest until the death of the tenant for life, when, the whole vested in Eliza Hol-liman, one of the appellees. (4 Kent Com., 207.) This position it is conceived does not controvert the general rule that where there is a bequest to A for life, and “after” his decease, or “from and after” or “at” his decease, then to B, that B takes a vested remainder, (o Bacon, 155.) In this example both the interest and possession are executed, the one legally aud actually, the other equitably aud potentially; aud upon the death of B intestate the estate would be distributed under the statute of distributions to his next of kin.
    In the case before the court botii the interest and possession are executory. It is a limitation to those who survive the tenant for life. And where there'is a fund given to the children of A, the shares to be payable on their respectively attaining twenty-one years, no child who is not in existence when the first share is payable is entitled. (5 Bacon, 126.) Or where (here is a bequest to A, and after his death to his children, and it be inferred from the will that only children living at tiie death of A are intended to take, their shares will not vest till that time. (2 Haddock, Cbanc,y, 17; 5 Bacon, 155.) Again, both real and personal estate are disposed of in tiie same clause and to the same-persons, and in one aggregate mass. After enumerating tiie negroes, the testator says, “with my stock of cattle, hogs, &e., household furniture, &o.,” evidently naming and conveying other species of property, many or other effects not enumerated cither by class, species, amount-, or sum ; and Haddock, in his Chancery Practice, says there is no caso where the court 'lias held a legacy or interest tliereou vested where tiie certainty of the sum given could not lie predicated. (2 Haddock, Chanc’y, 13.) Suppose the appellee,, Eliza, had also died during tiie lifetime of tiie tenant for life, the legacy would have lapsed for want of a person in esse to take upon the death of Amelia, although not of the testator’s children, and Alfred had left children surviving- them. As where A gave one hundred pounds apiece to the two children of I. S. at the-end of ton years after his decease and tiie children died, held that tiie legacy lapsed. (2 Haddock, Chanc’y, 13 ; 5 Bacon, 152.) Then Eliza, the appellee, being the only legatee who was in existence at the termination of tiie estate for life, and the only person then living, comprehended under the class “my own children,” succeeded to tiie whole legacy. (2 Kent Com., 352, note.)
    Admitting that tiie appellants could be admitted under the class children, the petition is defective for the want of an avennent that they were in ésse at tiie date of tiie will. (2 Bacon, 124.)
    But concede that the bequest vested in testator’s children at his death. It vested as an undivided aggregate fund to a plurality of persons, without “any restrictive, exclusive, or explanatory words,” and made them joint tenants. (2 Black. Com., 180; Id., 399; 2 Kent Com., 351.) And at tiie death of the coteuants vested in Eliza, the appellee, by survivorship. (2 Black. Com., 183, 184; 4 Kent Com., 360; 2 Id., 350, 351.) The doctrine of survivor-■ship, as incident to joint tenancy, is not, however, a necessary position to be maintained to defeat the claim of the appellants under what is conceived to have been the laws of Tennessee at that time. (7 Yerg. R., G06.)
    Iir. But, if it should he conceded that the appellants are entitled to an Interest in the bequest, llave they placed themselves in an attitude to recover it? So far as their claim depends on their mother’s rights, they must recover, if at all, as the representatives of their father, William Bufford, through the ■representation of their mother. If any interest accrued to Patsy Bufford, it was during her coverture, and not having been reduced to possession during her lifetime, at her death devolved upon her husband, William Bufford, as husband, iu virtue of his right to administer her estate. (2 Black. Com., 515.) Letters of administration ‘are indispensable to a recovery of the legacy. (2 Kent Com., 135, 186; 1 Yerger R., 414,415, 418, 421; 6 J. R., 117,118,119 ; 6 Yerger It., 49 ; 10 Id., 223; Clancy on Rights, 4.)
    How the question arises: Can the appellants, in their character as heirs or distributees, recover their legacies without administration upon the estates respectively of Alfred, Harriet, Patsy, and William, and of Amelia Thornton?
    The, uniform decisions of the courts of Tennessee deny the right of legatees ■or distributees to recover their distributive shares or legacies against any one except the executor or administrator. (1 Yerger R., 419,420,421, 423 ; 6 Id., 49; 10 Id., 385, 387.) In the latter case the court ask the question: “Can ■“distributees recover their distributive portions without an administration on “the estate of their intestate?” They answer : “ We are clearly of opinion “they cannot.”
    The same general principle is recognized in the eases of Moore v. Morse and in Evans, guardian, v. Oakley, 2 Tex. It., 400 and 182. The first was a case of a legatee claiming property bequeathed to him against the claim of ■a mortgagee. The'court say: “ Such rights, in general, can only be asserted “through the ordinary channel of the legal representatives, according to the “law regulating the settlement of estates of deceased persons.” (P. 402.) Bor the court again say: “But to permit anyone, merely on the grounds of his “ contingent interest iu the estate, to commence suit, would result in one of “two consequences, neither of which could be tolerated; that is, to suspend “ the action of the legal representative pending such interference, or that “ another suit could be carried on at the same time for the same property ; “ the one by the devisee or distributee, and the other by the legal representative.” (P.403.)
    The other case, Evans v. Oakley, was a suit brought by the only heirs for the recovery of a watch, alleged to have been pledged by the administrator of the, intestate; and the court held, that if the right of the property was not ■changed, (he, only person authorized to sue was the administrator de bonis non; and if the administrator liad abused his trust the remedy was upon his administration bond. (P. 1S3.)
    There is an intimation in that case that if there were no other heirs, no administra! ion, and no debts due from the estate, an heir or distributee might sustain an action. The court also, in the case of McIntyre®. Chappell, recognize the right of distributees where there are no debts or creditors to divide property by consent, without administration, or to recover their portion when the pan ics’ have shown by their acts that there is no necessity for an administration except for a division.
    I submit that such oases as were in the contemplation of the court will rarely ■occur in this State, only in cases precisely like the case then before the court. How can it appear, without an administration or by admission of the parties, that there are no debts? Creditors are not bound to present to or demand payment from any other person than the administrator and probate judge, and to them only after an advertisement of his appointment.
    
      IV. The rights of the parties are not clearly stated, the proper parties are not before the court, and the laws of the State of Tennessee, which must govern the distribution of the property, are not averred, without which the courts of this State cannot decree for the appellants. (2 Kent’s Com., 429; Story’s Confl. L., secs. 302, 465, 380.)
   Hemphill, Cel J.

This cause has been very ably argued. The argument for the appellants is principally confined to a discussion of the grounds upon which judgment was rendered below.

The counsel for the appellees, in his luminous and elaborate disquisition, has extended his researches to other points, aud has exhibited great capacity and industry in his explorations into the ancient learning of the law, much of which has either become obsolete or, at least, is foreign to the laws and jurisprudence of this country.

Independent of the grounds in relation to the necessity of administration on the estates of the deceased, one of the most important points in the argument of counsel was as to the character of the estate in remainder; that is, whether vested or contingent.

Questions of this nature have rarely arisen in this court or State. One reason, probably, is that between 1S21 and 1840 no such estate could have been created. Spain, long afflicted with the most deplorable evils, resulting from her laws of primogeniture and entails of various kinds, by which property was almost looked up from the uses of commerce, in a spirit of thorough reform, in 1821, by one decree swept off all these restrictions, giving, in substauee, the first taker of property full ownership and complete powers of control and disposition.

This became the law of Mexico and of the State of Ooahuila and Texas, aud under it remainders ovei', after a life estate, were void. They were restrictions upon the power of alienation in the tenant for life, and were therefore prohibited. They were known as fidei commissa, or rather as field commissary substitutions, and, as such, were repugnant to law, the first taker, or fiduciary legatee, being entitled to the whole estate.

We have to regret that many of the authorities referred to by counsel are not accessible to the court, and especially the decisions from the State of Tennessee, on which much reliance is placed.

To determine whether the remainder, limited in this bequest, is vested or contingent, we must ascertain the characteristics which distinguish one sort of remainder from the other. A vested remainder is defined to be an immediate right of present enjoyment or a present fixed right of future enjoyment. A grant of an estate to A for life, and, after his death, to B in fee, is a fixed right of future enjoyment in B, and is, consequently, a vested remainder. (4 Kent, 201.) It is a fixed interest, to take effect in possession after a particular estate is spent.

In Moore v. Lyons, 25 Wendell, 119, as cited in 4 Kent, 202, it was hold that in a devise of real estate for life, and after Ins death to three others, or to the survivors or survivor of them, their heirs and assigns forever,>the remain-dermen took a vested interest at the death of the testator. The law favors the construction that remainders are vested at the death of the testator, so as not to cut off the heirs of the remaindermen who may happen to die before the death of the tenant for life. It is the present capacity of taking effect in possession which distinguishes a vested from a contingent remainder. If it be uncertain whether a use or estate, limited in futuro, will ever vest, such use or estate is a contingent remainder. (4 Kent, 202-3-4.)

From these definitions it is quite manifest that the remainder to his own children aud to his step-sou was vested at the death of the testator,'-and did not. remain in contingency until the death of the tenant for life. The use of the expression, to become the property of the remaindermen after the death of Amelia, did not, it is conceived, hold it in contingency until that death. If he liad used the terms, “I give to my wife the property daring her “natural life, and after her death, to iny children,” &c., the remainder would have heen clearly vested. The expressions employed, viz: that the subjects of the bequests were after death to become the property of the persons in remainder, are equivalent and identical in meaning-, and import no more of uncertainty and contingency than do the other terms.

Having determined that the bequest became an actual estate in the legatees at the death of the testator, it follows that the interest of such of the remain-dermen as died before the termination of the life estate descended to their heirs.

Recurring to the special cause of exception, said to have been ruled upon below, the first is the want of an averment of the grant of administration on the estate of Yancy Thornton, the testator, and for the want of such administrator as a party to the suit.

There is nothing substantial in this objection. It is averred that the executor and executrix took out letters testamentary, and whether they did so in fact or not is of no consequence to the present claimants. The tenant for life took the property in possession immediately on the death of the testator. She may have done this in her capacity as executor, though oven that is doubtful. But if it be admitted that the inception of her possession was in her capacity as executrix, yet the presumption is, that as soon as it was ascertained that there where no debts to absorb or reduce her legacy, her possession was changed from its fiduciary character into that of ownership in her own right. The will contains internal evidences that there was no reason for delay in inly-ing over its several bequests. The testator believed that not only would the debts lie paid out of what was owing to him, but that something would be left for division. The doctrine that a formal assent to the payment of the legacy was necessary, or should have been averred, connot be maintained; and if it wore; necessary after the lapse of forty years it must be presumed. This doctrine had reference only to suits for legacies at common law from some supposed legal rights of the executor in the property and the necessity of his asseut to vest the property in the legatee. But in equity (lie executor was not regarded as the real owner of the' property. He was only a trustee holding possession for the purpose of his trust, and was liable and could be sued for legacies, whether he assented to them or not. (Story “Eq., secs. 591, 592, 593.) The administration of the estate of Yancy Thornton must,have long since closed. It is presumed that there is some law in Tennessee, as elsewhere, by which an administra!ion can come to an end; that there is a reasonable period within which its debts must be paid and its legacies satisfied. But it is unnecessary to discuss this objection further, as under the circumstances of this case it has no legal substance or merit.

The next exception is to the want of administration on tire estates of Harriet Thorn! on, Alfred Thornton, Amelia Thornton, and Patsy Bufford, and her husband, William BuiFord.

The objection, so far as it embraces the estates of Patsy Bufford, Alfred and Harriet Thornton, can be disposed of with but little difficulty. Patsy Bufford died in 1821, twenty-four years before the commencement of this suit. Prom this lapse of time we must presume that, if necessary, administration was granted on her estate, and that after successfully accomplishing all its objects it had long since terminated. The debts, if any, against her succession have long been barred, and a grant of administration could now have no other object than a recovery of this very properly by the administrator to bo then turned over to the plaintiffs. It is said that tiie law will not do a vain thing, and if so, it certainly would not permit a grant of administration, as that would be quite preposterous.

There, is a distinction between the right of an administrator to the property of an estate under (he English system of jurisprudence and the statutes of this Stare. In England the real estate descends and vests permanently in the heir, ihe personalty being in abeyance until the appointment of an •administrator, when it vests in liim. Under our former Spanish and Louisiana codes the whole property was vested by acceptance with or without the benefit of inventory in the heirs, or was renounced by them, the appointment of an administrator being a subordinate matter, dependent on circumstances. Whether, after the introduction of the common law, estates of decedents vested ■at once in the heirs before the statute of 184S, it is not necessary to express any opinion. Very clearly by that statute (art. 1221) they did upon the death vest immediately in the heirs, devisees, or legatees. The theory that the personal estate is in abeyance until the grant of administration, was never the law in this State. It vested in its true owners, and required no aid from an administrator to invoke it from the clouds, for no other purpose, perhaps, than 'to transfer it to a legatee.

At common law executors and administrators were regarded as real owners ■of the property, and in fact for a long- period were entitled to the residue after the payment of the debts. And it was not until the statute of 22 Charles II that administrators were definitely compelled to distribute the surplusage •among the next of kin. The doctrine itself no longer exists at common law, but many of its traces are visible on the law of administrations. Ho such ■principles or any resembling them were ever embodied in our various codes of jurisprudence. The heirs testamentary or ah intestaio were always regarded •as the true owners of the succession, and administrators as but trustees, with, ■it is true, important and very enlarged powers and obligations.

Where but a limited period has elapsed since the death of the deceased it would be inconvenient, as a general rule, to permit legatees or distributees to sue strangers for personal property, not for the reason" that they are not really the owners and have no certain interest until after the administration, hutas 'there is a presumption of the existence of the debts, and as they have a prior claim, it is more convenient that the succession be controlled by one responsible agent representing the rights of all interested, and preparing it, after being relieved of all incumbrances, for distribution among its rightful owners. But where time is permitted to run on, where the creditors, if any, will not take measures to enforce payment, the presumption arises that there are no debts, and the real owners in possession of the property or having rights thereto cannot be disturbed in their possessions or thwarted in their actions by attempts at administration for the benefit of creditors whose claims by their own laches and neglect have been forfeited. We are of opinion that there is no necessity for administration on the estate of Patsy Builbrd. Surely her heirs, a quarter of a century after her death, cam sue and recover any property claimed without the extraneous and superfluous aid of an administration. .

These observations apply with equal force to the objection for the want of administration on the estates of Harriet and Alfred Thornton, between whose deaths and this suit there was a lapse of fifteen years.

The objection for the want of administration on the estate of Amelia Thornton, the mother, has not been urged. It does not appear from the face of the petition that plaintiffs claim by representation through the said Amelia.

Another ground of exception is that no administration lias been had on the estate of William Bufford, the father of plaintiffs; and it is contended that by the common law the plaintiffs can claim only through their father’s representatives ; that as husband ho had a right to reduce his wife’s dioses in action Into possession to recover the property as her administrator, but for his own ■exclusive benefit; and that that administration devolved upon his representatives if not taken out during his life. These doctrines may or not have some ■foundation in the laws of Tennessee, the domicile of the deceased intestate. I have not the means of ascertaining whether they are well founded or not. Whether the statute of distributions of the 22d Charles II, with the exxfiana-itory sections from the statutes of frauds and perjuries of the 20th diarios II, has been adopter! in Tennessee is not known. The rights of the plaintiffs on demurrer must be, tested by the laws of this State. The laws of Tennessee are facts which, not being averred in the petition, cannot on exception l)e considered. They can ho recognized and acted on only when proven and established as other facts in evidence at the'trial.

By the laws of this State, as they existed at the death of Patsy, the mother of tiie plaintiffs, and at the commencement of this suit, all her right and interest in this property vested in the plaintiffs as her hcirs-at-law. Tiie husband had no claim therein. Consequently, hi the present aspect of the case, the necessity of administration on his estate is not a subject of examination. In any event, even if the laws of Tennessee be such as they are represented, yet, as there is very little probability that there arc auy debts against William Buil'ord in Texas, letters of administration would be more a matter of form than of substance. Should the plaintiffs deem it advisable, they may cause administration to be taken on the estate of William, and if so, and application is made by him to become a party to this suit, he is required to bo admitted as such, and the suit will proceed jointly in the names as well of the administrators as of tiie present plaintiffs.

There are several points of some interest discussed in argument which I cannot notice; and the examination I have made into those considered has, for the want of authorities, been conducted under great disadvantages.

Reversed and remanded.

Note 102. — Patton v. Gregory, 21 T., 513; Giddings v. Steele, 28 T., 732. But the heirs may bring suit in reference to the homestead without taking out administration. (Sossaman v. Powell, 21 T., 664.  