27 Miss. 436 | Miss. | 1854
delivered the opinion of the court.
This was an issue in the circuit court of Warren county, for the trial of the right of property to a certain slave, between John Henderson & Co., as judgment creditors of Washington Smith, and Charles Clarke, as administrator ad colligendum of the estate of Samuel Smith, deceased, as claimant of the slave.
The jury found a verdict for the claimant, which the court, on a motion for a new trial, refused to set aside, when the plaintiffs took a bill of exceptions embodying the evidence. The errors assigned are the refusal of the court to grant certain instructions,
To understand the\ instructions granted on behalf of the claimant, it will be necessary briefly to notice the evidence.
Samuel Smith, the intestate, died sometime during the month of May, 1843, leaving no children; his widow and brothers and sisters were entitled, under th(J statute, to his personal estate. No administration having been granted on his estate, these parties in December, 1844, met together, and by agreement amongst themselves, divided the slaves of the intestate, when the slave nowin controversy was allotted to and received by Washington Smith, one of the brothers of the deceased. It is also proved that previous to this division of the slaves, the widow and heirs paid and assumed to pay whatever debts the intestate owed.
It was insisted on the trial below that this proceeding on the part of the widow and heirs was void, inasmuch as the division or distribution of the property was made without administration on the estate of the deceased, and the court in effect so instructed the jury, which instruction, in our opinion, whatever the general rule of law may be, was erroneous under the facts of this case.
The object of distribution is to ascertain the share of each heir in the joint estate, and to give to it such identity as will enable him to enjoy it in severalty. Distribution gives to the heir, in fact, no new title. It merely ascertains the extent of his title or interest in the estate. An administrator holds the legal title as a trustee for those beneficially interested in the estate. He has only such legal title as is necessary to enable him to execute the trust. It is not necessary for the mere purpose of distribution, for him to have the legal title, and hence the law does not in such case give it to him. The act of distribution itself, is an admission of the title of the heirs at law. If this be true in regard to an administrator, why cannot heirs, who are capable of binding themselves, agree to divide or distribute the joint estate? If there were no debts due by the deceased, the administrator would have no authority to sell slaves. And in making the distribution, the heirs could force him to adhere
The second instruction of the court to the jury, that an administrator ad colligendum holds property for the payment of debts and for distribution, is not true even as a general rule of law. He has no power to pay debts, to sell property for that purpose, or to make distribution. We cannot, therefore, presume that he was appointed at the instance of creditors. He has power to sue for and collect debts, and as it is proved that there were some debts due to the estate, we must presume that he was appointed merely for this purpose.
His appointment does not even raise a presumption against the testimony that the debts of the estate were paid, for the reason that he is wholly without authority to pay them. The heirs could be pursued as executors de son tort, if necessary, by creditors, or any creditor may take out letters of administration on the estate, if necessary for the collection of debts.' But the evidence in the cause is clear that the debts have all been paid, and no administrator would be allowed to set aside the agreement of the parties merely for the purpose of going through a more formal mode of distribution.
The judgment is reversed, new trial granted, and cause remanded.