Alexander v. Espy , 25 Tenn. 157 ( 1845 )

Reese, J.

delivered the opinion of the court.

The ancestor of the complainants, by his last will, devised, for the life of the persons therein mentioned, certain slaves, and when the life estate should terminate, then the slaves to be equally divided among the children of the life owners.— The life estate has not yet terminated, but the person to take as purchaser, under the will, the estate limited in remainder, has departed this life.

The complainants, her children and next of kin, file this bill, in that character, to have the slaves impounded, that is, that the defendant shall give bond with surety, for their forthcoming and delivery at the termination of the life estate.

There is no administrator of the decedent, the owner in remainder, before the court, but the parties claim directly as next of kin, and distributees without administration. There should be an administrator, representing the decedent, the. owner in remainder by the limitations of the will, to prefer their claim, and to whom the bond should be given, and the delivery of the slaves made. Creditors have the first claim upon the property; and the administrator, their trustee, as well as that of the next of kin, and the only representative of the deceased, must be before the court. The title of the complainants is too remote.

This principle has been often ruled, and is a settled one, where property is tobe recovered inpreventi; and it applies, also, to a proceeding like the present.

The decree will be reversed, and the bill dismissed, without prejudice.