Robertson's Heirs v. M'Daniel , 28 Ky. 11 ( 1830 )

Chief Justice Robertson,

delivered the opinion of the court.

Jennings Robertson died intestate, leaving eight infant children, and a widow, and, among other articles of property, two slaves. M’Daniel hav-' ing afterwards married one of the daughters, filed a hill in chancery, in conjunction with his wife, for a sale pf the slaves, and distribution of the proceeds.

The answers resist the sale and distribution on the ground that such a course would be disagreeable and injurious.

But, on the bill and answers, the circuit court allotted one of the slaves to the widow for dower, and decreed the sale of the other.

The defendants below prosecute this writ of error to feverse that decree.

The decree is erroneous for the following reasons.

1st. There is no evidence of the value of the slaves; and, therefore, the court erred in decreeing one of them to the widow.

2d. It has not been shown, that there could be no administration. A sale and distribution should not be decreed, unless the personal representative, if there be one, be made a party; if there be none, one should be appointed and made a party, unless such appointment bo impracticable.

If, as suggested in one of the answers, the intestate died in "Virginia and the slaves were then in Virginia, administration could not be had by the order of any court in Kentucky. And if these facts had been alleged in the bill and admitted in the answers, distribution might be decreed, without administration, especially, if the title to the slaves be now vested absolutely in the heirs, But such a state of caséis not exhibited in this record. And creditors, if there be any, should not be prejudiced by a decree for the sale of the slaves, unless it appear, that there is not and cannot be any administration.

If it appear, that the intestate died in another state, aud that the slaves of which dis-, tribution is .sought, still remain in another state, distribution may be dedecreed without- adminis tration.being. granted to any person. Denny, for plaintiffs.

Whether, if the slaves were brought from Virginia by the widow, her dower in them, has heen thereby forfeited, is a question which may occur in the further progress of the case, in the]inferior court, hut is not now presented for consideration.

Decree reversed, and cause remanded, for further proceedings, according to this opinion.