| Conn. | Jul 15, 1822
The action of the plaintiff is founded on this principle; that the defendant was joint owner with Hall and Robbins of the ship Greyhound. It appears, that the ship was formerly the property of Samuel P. Lord, deceased; that Hall and Robbins derived their right from two of his heirs; that the above owner died intestate; and that no administration has been had of his estate. Under the charge of the court to the jury, it must be presumed, they found the following facts: that the defendant, one of the heirs of S. P. Lord, deceased, had no other interest in the ship than what he derived from being an heir to his father; that he was not in possession of the ship at the time the plaintiffs’ demand accrued; and that he has done no act from which his assent to the appointment of the master of the ship, or to the furnishing of the supplies, may be inferred. The question presented is merely this; whether, by virtue of his right of inheritance, the defendant is joint owner with Hall and Robbins of the ship in question; so that by their appointment of a master, who procured the requisite supplies for a voyage, the defendant, without possession of the ship or assent, is bound to contribute to the expenditure. The court below negatived this question, and, I think, with entire correctness.
At common law, the real property of an intestate, descends to his legal heirs; but the personal estate does not descend. Before the statute of Westminster 2. cap. 19. the ordinary had the absolute disposal of the personal estate of intestates; and this power was first abridged, by the statute of 13 Edw. 1. cap. 19. requiring him to pay the debts of the deceased so far as his goods extended. By successive statutes, the ordinary was compelled to grant administration of the estate of intestates; and eventually, by the statute of 22 and 23 Car. 2. cap. 2. to take bond of the administrator, in order to enforce the payment of debts, and the distribution of the property. But, to the present time, all the chattels of a testator, belong to his executors, for the payment of debts and legacies, and of an intestate to his administrator; and his heirs, vested only with a right, cannot possess or enjoy the property, except through the medium of a distribution. The heir, so far from having a right to possess the personal estate of the deceased, if he intermeddle with it, is an officious intruder; and becomes an executor in his own wrong, liable to all the trouble of an executorship, without any of the profits or advantages. The lawful executor may bring trover, before the will is proved
The case of Griswold v. Penniman, 2 Conn. Rep. 564. has been cited as having established a different doctrine; but this decision is misconceived. The enquiry in the case, was not in relation to the nature of the right, vested in an heir, to the estate of his ancestor, much less whether he could legally take possession of personal estate anterior to distribution. But it had respect exclusively to the right of the husband, to the distributive share of his wife. Like a legacy to the wife, or a bond taken to her during coverture, it was adjudged, by the court, that her right as heir to personalty vested absolutely and exclusively in the husband. But, it was never contemplated, that the invested right, gave him a legal authorthority to enter into possession of the chattels of the deceased, until after a lawful distribution.
In the late case of Schuyler & al. v. Hoyle & ux. 5 Johns. Ch. Rep. 196. where the wife succeeded, during the life-time of her husband, to a distributive share, over which he exercised no authority or dominion, and which remained in the hands of the administrator, at his death; Chancellor Kent decided, that she was entitled to such share, in preference to the representatives of her husband. “While the share,” said he, “remained in the possession of the administrator, it retained the character of assets, and the legal title and possession were in him, qua administrator.”
The charge, in my opinion, was correct; and I would not advise a new trial.
The other Judges were of the same opinion.
New trial not to be granted.