Thompson v. Thomas

30 Miss. 152

• Court: Mississippi Supreme Court
• Decided: December 15, 1855
• Status: Published

Opinion

Mr. Justice Fisher,

delivered the opinion of the court.

This case comes bj appeal into this court, from a decree of the Probate Court of Lowndes county.

The only point presented by the record for decision is, whether the legal representative of those who were the next of kin of the intestate at the time of his death, or those who are next of kin at the time distribution is sought to be made, are entitled to the surplus of the estate remaining in the hands of the administrator upon settlement of his final account.

It is now firmly settled by the English decisions, upon their Statute of Distributions, of which ours is in many respects almost an exact copy, that those who are the next of kin to the intestate at the time of his death, acquire a vested interest in his estate; and that, although distribution cannot be coerced until the lapse of one year from the grant of administration, yet there is no difference in principle between the interest acquired by the distri-butee and a legacy payable a year hence, which is held to be an interest vested at the testator’s death; the statute is treated as the will which the law makes for the deceased, and distributees and legatees may be said to stand upon the same footing, so far as the time is concerned at which they acquire an interest in the estate.

But our statute has left no room for doubt upon this question. Its language is as follows: “When any person shall die possessed of goods and chattels, or personal estate not bequeathed, the same shall descend to, and be distributed among his or their heirs, in the same way and manner that real estates not devised descend by this act.” Hutch. Code, 624. The same persons who take by descent the real estate of an intestate, also take his personal estate. The title, as to both kinds of estate, relates back to the death of the intestate. Distribution gives to the distributee no new title to the property, but only ascertains the property to which his title shall attach, as heir at law of the deceased. It is true, that until distribution, the title is treated as in the administrator ; but it is nevertheless true, that he can do no act in virtue of such title, to defeat the rights of the distributee, unless he has the authority therefor of the court which granted the administration on the estate. The title of the administrator is, in the strictest sense, held in trust for the benefit of the next of kin to the intestate.

Decree affirmed.