#### MERRITT WHIT, ADMINISTRATOR &c. vs. SOLOMON M. RAY.

Where a man dies intestate and, there bring no administration on his estate, the next of kin take possession of it, no legal title vests in them, however long they may possess it; but if an administrator be apppointed even ten years afterwards, the legal title then vests in him and relates back to the death of the intestate. The possession of the next of kin, in the meantime, though claiming it as their own, is no bar to his recovery of the property.

Appeal from the Superior Court of Law of Yancy county at the extra term in August, 1843, his Honor Judge Pear-sow presiding.

The following was the case reported' by the presiding-Judge. This was an action of trover for a bay mare. The plaintiff proved, that, about the year 1831 or 1832, one Pierce Roberts died intestate, leaving a wife and several young children, who continued to live together and carry on the farm and keep possession of all the personal estate of the intestate, without any division, for several years; when the widow married one Oliver, who, after that, lived with them and assisted in managing the farm, and together with Roberts’ children, used the horses, stock &c., as a man would use his own property — that, among other articles o£ property owned by Roberts at his death, was a mare — that, af. ter his marriage, Oliver put the mare to a horse' — that she brought a colt, the bay marc sued for, and the co’lt was rais-*15sed on the plantation, together with the increase of the ther stock left by Roberts, all of which was used by Oliver and his wife and step-children, as if it was their own property — that in January, 1842, the defendant seized, and converted to his own use by selling, the bay mare, then about four years old and worth about forty or fifty dollars — that in February, 1842, the plaintiff was duly appointed the administrator of Pierce Roberts, there having been before that time no administrator — that the plaintiff then notified the defendant of his appointment as administrator, and required him to give up the mare or pay her value, which he declined doing. The defendant proved that, as constable, he had- a judgment and execution against Oliver and had levied upon the mare as the property of Oliver.

The court charged, that when a man died intestate, altho1 no administrator was appointed and the property went into the possession of the next of kin, still the legal title did not vest in them, and they acquired no such interest as was liable to- execution ; and, if, after the expiration of ten or twelve years, ah administrator was appointed, the legal title was’ then in him, and related back to the-death of the intestate, whom he represented, and he had a right to require the next of kin to deliver to him such of the property as they had in possession, though they had been in possession, claiming it as their own, during all the intermediate time — that they could not acquire title by the statute of limitations, because their possession was not adverse, and there was no person to sue — thaty after the administrator had taken the property and paid the debts, if any, he was then to deliver it to the next of kin, in the due course of his administration, when the legal title would vest in them. The Court further charged, that, in this case, the mare in question, being a colt of the mare belonging to Roberts, though foaled several years after his death, was subject to the same rule ; for, in legal contemplation, the ownership- of the mother, at the time she had the colt, was in the administrator — that Oliver, marrying the widow, succeeded to her rights and took her place, as one of the distributees, and was subject to the same rule that would *16havc applied to the widow, if she had not married — that the defendant, as constable, represented the rights of the creditor, and was entitled to the interest of Oliver, provided it was subject to execution ; but Oliver’s interest was not subject to execution, rind the constable was placed in the' same situation in regard to the legal title of the administrator, as Oliver would have beeii, dr as the widow would have been, had she remained single. The defendant’s counsel moved the Court to charge the jury, that Oliver’s being in possession and using the property as his own, so as to give him a false credit, was a fraud upon his creditors and made the property liable. The Court refused so to charge, because there was nothing to divest the legal title of the administrator or to prevent him from asserting it.

There was a verdict for the plaintiff, and a new trial having been refused, the defendant appealed.

No counsel appeared for either party in this court.

Daniel, J.

We have examined the opinion given in this case by his Honor in the court below, and it seems to us that it is correct in law. We therefore adopt it as the opinion of this Court. The judgment must be affirmed.

Per Curiam, Judgment affirmed.