Anderson v. Smith , 3 Met. 491 ( 1861 )

JUDGE DUVALL

delivered the opinion of the court:

These cases arise upon the same record, and will be considered together.

Upon the death of Jesse Anderson his mother became entitled, as one of his heirs and distributees, to an undivided fourth part of his remainder interest in the slaves which had been assigned to her for dower in the estate of her husband. And tffe appellee, Smith, who had married the mother, became entitled, upon her death, either by survivorship or as administrator, to her remainder interestin the slaves, being one-sixteenth part undivided.

These propositions are not controverted by the appellants. But they insist that their demurrer to the petition should have been sustained because the administrator of Jesse Anderson was a necessary party to the proceeding. It is,in general, true that a suit for the division of slaves descended cannot be maintained until an administrator shall have been appointed, and made a party. And for this plain reason: Slaves are assets in the hands of the personal representative, for the payment of debts, and no division of slaves amongst the distributees will ever be decreed until it shall be made to appear either that there are no debts against the estate of the decedent, or that they have been fully paid. The administrator representing, as he does, the creditors, and being bound to protect their rights — having, indeed, no other interest in the slaves of his intestate than to hold them in trust for the payment of debts— must in general be brought before the court in order that the property may not “escape the grasp of creditors” by a premature and improvident order for distribution among the heirs.

But cases may occur in which it would be unjust and ab-, surd to apply this rule. The present case is one of them. The decedent died an infant in 1829. His undivided remainder interest in the slaves in contest might have been subjected to the payment of his debts, if he had owed any. The life estate terminated in 1857, and not until then did the appellee’s right of action accrue. Should the court hesitate to award distribution, upon the idea that there maybe outstanding debts against the estate of the decedent? Does not the lapse of ' time — a period of twenty-eight years since his death — afford a presumption amounting almost to absolute certainty that there are no such debts ?

It is perfectly clear that there was no necessity for the appointment of an administrator, for any of the purposes of this action. Indeed, no administration can be granted after the expiration of twenty years from the death of the decedent, according to the Revised Statutes, and to refuse thfe ap-' pellee relief on the ground contended for would be an indefensible denial of a plain and clear right.

All the persons in the possession of any of these slaves were necessary parties to the suit for distribution, and the service of process on M. J. Anderson in Livingston county brought him properly before the court.,

We see no error in the judgment complained of, and it is therefore affirmed.