#### Madison Beecher and two others *vs.*Crouse & Bruce.

NEW-YORK,

May, 1838.

The next of kin cannot maintain an action or prosecute a" claim for a distributive share of the personal property of the deceased ; an administrator must be appointed, and the suit brought in his name.

For intermeddling with the issues and profits of real estate belonging to in. o fants, an action will not lie in their names ; the suit must be brought in the name of the guardian in socage, or general guardian appointed by the surrogate.

Error from the Madison common pleas. The plaintiffs in error, *infants*within the age of twenty-one years, brought their suit in *trover,*by *prochein ami*against the defendants in error, in the court of common pleas of the county of Madison, for the taking and conversion of personal property which had belonged to their deceased father in his lifetime, and also for the taking and conversion of a portion of the *307crops of a farm which had descended to them from their father, and which crops had been raised since his decease. The property in question was taken by the defendants under an execution against one Peter D. Petrie, who since the death of the plaintiffs’ father, had married their mother, Petrie and his wife resided on the farm, and the plaintiffs lived with them. The father of the plaintiffs died intestate about the year 1820, leaving personal property consisting of a wagon, sleigh and other articles, which on his decease went into the possession of his wife, who intermarried with Petrie about the year 1822, when the property passed into his possession, and a portion of it particularly the waggon and sleigh, remained in his possession until 1830, when it was levied upon by virtue of an execution against him. Crops which had been raised upon the farm of the plaintiffs the preceding harvest were also levied upon, and the whole sold by virtue of the execution. No letters of administration were issued upon the estate of the plaintiffs’ father. This suit was commenced in February, 1833. The defendants proved that in 1831 a general guardian was appointed by the surrogate of Madison for two of the plaintiffs, but it also appeared that the general guardian had not acted under his appointment. The defendants insisted, I. that as to the crops the plaintiffs were not entitled to recover; that they belonged to the mother of the plaintiffs as guardian in socage, and that the action should have been brought in her name and in the name of her husband; and 2. as to the other property in question, that the action ought to have been brought in the name of the general guardian : both which propositions were sustained by the court, and the jury, under its direction, found a verdict for the defendants. The plaintiffs by their counsel having excepted to the decision of the court, sued out a writ of error.

*T. Jenkins,*for plaintiffs in error.

*J. A. Spencer,*for defendants in error.

*308
      *By. the Court,*

Nelson, Ch. J.

The case of *Woodin*v. *Bagley,*.13 Wendell, 453, is in point against the action as to the personal property of. the ancestor. There it came from the grandfather, and had passed into the hands of the grandmother in her lifetime, and the suit was instituted against her executors. The court held that the action would not lie, as the plaintiffs were not entitled to the personal property as heirs, they not being liable to the creditors of the estate as such in respect to it; that it went to the personal representatives, who in judgment of law were distinct individuals. The case was distinguished from *Hyde v. Stone,*7 Wendell, 354, which was shown to stand upon its peculiar circumstances, and out of the general principle. Neither possession in fact or by construction through force of title is shown to be in these plaintiffs.

Equally unfounded is the action to recover the products of the farm, as no right whatever is shown to them in the plaintiffs. The mother and father are presumed to be lawfully in the possession and occupation of the products—the mother as guardian in socage, and the step father jure uxoris ; 1 Johns. R. 163; 5 id. 66; 7 id, 156; 17 Wendell, 77; 1 R. S. 718, § 5 ; and of course the products belonged to them, or rather to the husband, Petrie. On the appointment of a general guardian, the rights and powers of a guardian in socage cease; 1 R. S. 719, § 7; but until he appears and asserts his right, the prior guardianship necessarily continues. 5 Johns. R. 67. The powers and duties of a general guardian and of a guardian in socage are now declared by statute. Among other things, he is “ safely to keep the things that he may have in his custody belonging to his ward, and the inheritance of his ward,” and “ shall answer to his ward for the issues and profits of real estate received by him.” *2*R. S. 153, *§*20.

Judgment affirmed.