#### ANN HENRY & AL. *vs.*CHARLES HENRY *&*AL.

Fer Nash and Pearson, J. The word ‘‘distributees” may be properly used in a petition, calling an administrator to an account, to denote those, who are entitled to succeed to an intestate’s estate, under our Statute of distiibu-tions.

Fer Rurror, C. *1.*The word ‘‘distributees” is not *to*be found in any English Dictionary or in any law book and conveys no definite idea. It therefore cannot be intended by the Court to mean those, who are entitled to distribution of an intestate’s estate.

Appeal from the Superior Court of Law of New-Han. over County, at the Fall Term 1848, his Honor Judge Manly presiding.

The petitioners allege, that they are the “heirs at law’’ and “distributees” of Hezelriah Bonham, who died intestate ; that the defendants are the administrators of the said Bonham, and, as such, took iuto their possession ne-groes, bonds, money, and other personal property to a large amount. The prayer is for an account and distribution.

The defendants admit, that they are the administrators *de bonis non*of Bonham, but they allege, that administration upon his estate had been before granted to one Neil Henry, who died intestate, and that one Nathan Bonham is the administrator of the said Neil Henry. They, therefore, insist, that they are liable to account with the said Nathan Bonham, and not with the petitioners, Ann Henry or her children. They further allege, that Neil Henry committed a *devastavit*to the amount of about $800, and they are the sureties on his administration bond ; “they maintain, that the estate of the said Neil Henry is respon” sible for this deficiency, and the defendants having the *279share of the estate of the said Hezekiah Bonham in their hands, to which the representatives are entitled, they have a right to retain the same, or so much thereof, as shall be sufficient to pay, satisfy, and discharge the said deficiency.”

A reference was made to the clerk to take an account. The clerk made a report, to which the defendants filed an exception. The case came on to be heard upon the petition, answer, report, and exception. The exception was overruled, and the report was confirmed, and a decree for the petitioners, from which the defendants appealed.

*Strange*and *W.*-á. *Wright,*for the plaintiffs.

Nor counsel for the defendants.

Pearson, J.

The petitioners claim the personal estate of the intestate, as his “heirs at law” and “distributees,” The word “heirs” is used to denote the persons, who are entitled, by descent, to the real estate of a deceased ancestor. It is appropriated to that purpose, and when used in pleading, in reference to personal estate, it has no meaning, and must be rejected as surplusage.

The other word, “distributees,” is new in pleading, but my brother Nash and myself deem it admissible to denote the persons, who are entitled, under the statute of distributions, to the personal estate of one, who is dead intestate.

No one word has heretofore been used for that purpose, and it has been necessary, in order to covey the idea, to make use of a paraphrase or set of words. “Widow” or “next of kin” are sometimes used in pleading, but these woi’ds are insufficient to convey the idea ; for “next of kin” means nearest of kin, and does not include those, who are entitled by representation, The statute of distributions uses the words “next of kin of the intestate, who are in equal degree, and those who legally represent *280them.” To avoid the use of so many words, it is certainly desirable to have one word to convey the idea, in reference to personal estate ; and as there is a necessity for *making a word,*we can see no objection to the word “dis-tributees.” It commends itself, because it is new, and has not been appropriated to any other use, and *is*as fit and seemly a word, as feoffee, mortgagee, bargainee, bai-lee, endorsee &c. We know the word “distributee” is now in common use among the legal profession, and the fact, that it has been adopted by the profession and the legislature, notwithstanding the severe rebuke given to it by Chief Justice Henderson in *Croom*v. *Herring,*4 Hawks. 393, is a convincing proof that the necessity for a new word really existed.

But yielding to the petitioners the benefit of this word, they have not entitled themselves to a decree, because there is no proof, that they are distributees. The answer does not admit it, and no depositions have been taken ; and we should reverse the decree made below, and dismiss the bill, but for the fact, that the answer is equally defective, and we feel disposed to extend great indulgence to proceedings commenced in the County Court. The answer does not state the ground, upon which the defendants maintain their right to retain the share of the estate, to which the representatives of Neil Henry are entitled. Nor does it state upon what ground, Neil Henry became entitled to a share of the estate of Hezekiah Bonham. We conjecture from what is stated, for the first time, in the decree, that Niel Henry was *the*husband of Ann Henry, the petitioner, and that the defendants wish to raise the question, whether, as husband, he was not entitled to her distributive share, but there are no allegations to raise the question and no proofs whatever.

The decree made below must be reversed, with costs in this Court, and we will then direct the cause to be re*281manded upon the motion of the petitioners, so as to let in amendments and give an opportunity to make proofs of the allegations. If no such motion is made at this or the next term, the petition will be dismissed.

Ruffin, C. J.

Having the misfortune to differ in opin* ion with my *Brothers*on one point in the case, I must take the liberty of stating my reason, and to make myself the more intelligible, I will state the case as it appears in the record. This is a petition for an account and distribution of the personal estate of an intestate, Hezekiah Bonham. It was filed in the County Court by Ann Henry, Nathaniel Bonham, and six other persons, in December 1842, and it states: “That Hezekiah Bonham died seme years since intestate and possessed of or entitled to many negroes and to money, notes, bonds, and other personal property: that your petitioners are the distributees and heirs at law of the said Hezekiah : that after his death, administration of his personal estate was granted to Neil Henry, and that he had it in possession a considerable time longer than in law he was entitled to keep it, and then died ; and that the said administra» tion was thereupon granted to Charles Henry and Archibald F. Murphy : that the said estate required very little delay in settling with the heirs, your petitioners; for your petitioners show, that there were no difficulties or very little to prevent the said administrators from paying and settling with the heirs aforesaid: that the said Henry Murphy continues to detain the said negroes and other property, although called on by your petitioners to settle with them as the distributees and heirs as aforesaid'” The prayer is, that the administrators may be decreed to settle and pay over “ to said heirs their portion, or to settle with the Court, so that your petitioners may receive their due proportions ; and also that your worships -will appoint three commissioners to divide the said negroes among the heirs as aforesaid,” and for general relief.

*282The answer admits that Neil Henry administered on the estate of the intestate Hezekiah Bonham, and states, that the defendants were his sureties for the administration, and that the said Neil died intestate and Nathan Bonham is his administrator. It then insists, that the defendants “are bound to account to the administrator of Neil Henry, and not the present petitioner, Ann Henry or her children and it proceeds farther thus. “These defendants show, that Neil Henry committed waste in the management of the estate to the amount of about $800, and is responsible to the distributees of the said Hezekiah therefor ; and they maintain, that *the*estate of the said Neil is responsible for this deficiency, and that these defendants, having the share of the estate of the said Hezekiah in their hands, to which the representatives are entitled, they have a right to retain the same or so much thereof as shall be sufficient to satisfy the said deficiency.”

In June 1844, it was referred to the Clerk “to take an accountand in September following he reported : first, an account between Neil Henry, the first administrator, and the estate, on which a balance of #1673 39 was found due to the estate on the *1st of January, 1841 ;*and secondly, an account between the present defendants as administrators and the estate, on which a balance of $2179 78, was found due to the estate on the 13th of July, 1844, arising from the hire of negroes, sales of property, and money received on bonds to the intestate.

The defendants excepted to the report, because “they are not liable for the amount reported to be due from Neil Henry, but only responsible as administrators *de bonis non*for such sums as have been by them received.”

From a decree in the County Court in favor of the plaintiffs, the defendants appealed ; and in the Superior Court, the exception was overruled and the report confirmed, and a decree made ; in which it was declared, “that the petitioners are entitled to distribution of the es*283tate of Hezekiah Bonham, deceased, and that Neil Henry administered on the said estate and gave for sureties to his administration bond the defendants, Charles Henry and Archibald F. Murphy: That the said Neil died intestate without having administered the said estate of the said Hezekiah and made distribution thereof among his next of kin : at the time of his death the said Neil had in his hands of the said estate the sum of $1673 39 unadministered, on which he was accountable for interest from the 1st day of January, 1841, making up to this sum of $709 51 : that there is in the hands of the defendants, Henry and Murphy, as administrators *de bonis non*of the intestate Hezekiah, the sum of $2179 7S, without taking into account the balance in the hands of Neil Henry at the time of his death, with the interest thereon ; for which balance with interest as aforesaid the defendants are liable : and that the whole liability of the defendants to the plaintiffs is for the sum of $4562 68, with interest on $2179 78 from the 10th day of September, 1844, and on $1673 39 from this time until paid.” There was a decree accordingly for payment to the plaintiffs and for costs in both Courts ; and the defendants appealed.

It has been stated at the bar, that Ann Henry, one of the plaintiffs, is a daughter of the intestate Bonham, and the widow of Neil Henry, the first administrator of Bon-ham ; and that the questions made at the hearing, and which the parties desired to present here, are, whether the distributive share of the wife vested in her husband or survived to her; and whether the defendants are chargeable in this suit for the *devastavit,*if any, of Neil Henry. But a prelimary difficulty exists as to the facts necessary to raise those questions. It is not stated in the pleadings, that Neil Henry was the husband of the petitioner Ann, or had any connection with the intestate’s estate, except as administrator. There is a vague state*284ment in the answer, that the defendants are bound to account to the administrator of Neil Henry, and not to the petitioner, Ann, or her children. But why he should account to one in preference to the other, or, indeed, to either, is not suggested, and can be conjectured only from the information communicated by the bar. The Court cannot, then, determine the question as between the husband and wife, as the marriage is not alleged, and, consequently, could not be declared.

So in respect to the other question, the enquiry is necessary 'presented in the first instance, whether the plaintiffs have a right to the estate, before it can be considered, Whether the defendants are to be charged with this, or that demand. It is indispensable, that a plaintiff should in his pleading give himself a title to the thing he demands, for the Court cannot declare one, which is not set up. These plaintiffs say, they are the “heirs at law and distributees” of the intestate Bonham, and they pray, that the defendants may be decreed to pay to “the said heirs” their portions of the estate, and that the negroes may be divided “among the heirs as aforesaid.” The plaintiffs, therefore, claim as “the heirs and distributees” of the intestate. The statute distributes the personal estate of an intestate among his “widow and children or next of kin in equal degree or their legal representatives,” and not to the heirs. The term “heirs” has no proper signification in respect to the right of succeeding to personalty. It is often used in wills and in inaccurate conversation to signifiy, in an improper sense, children, sometimes, and at other times, descendants, or issue, or nearest of kin, or the persons entitled under the statute of distributions ; and these different meanings are arrived at from the context. But it, surely, would not be tolerated in pleading as expressing either of those senses, or constituting a title under the statute to the personal estate of an intestate) after debts paid. Upon that point, however, my Brethren and I concur.

*285The other term, by which the plaintiffs describe themselves and make title, is yet more objectionable, as I conceive. “Heirs” is an English word and a term of the law, and is, therefore, understood, though improperly applied to this subject. But “distributees” is not a word at all known in the law or the language. Until my Brothers told me, that they understood what it meant, I must humbly beg pardon for saying, that I looked upon it as a newly invented barbarism, and without any settled sense. Indeed, I do not now understand from what source the meaning of the term is derived. I believe it i/yrphrase which is sometimes used in common *parlanceJm*persons, who are not of the profession and do not aim «accuracy in speaking on legal subjects. Some memafers of the bar may have, thence, fallen into the use of if,sometimes in discussion, when precision of expression is of the less importance, as there is opportunity for explanation. But those, who indulge themselves in that mode of speech, are so sensible of its impropriety, that, as Judge Henderson remarked in *Croom*v. *Herring,*4 Hawks. 393, they seldom use “distributee” without an apology ; knowing that it is not to be found in any English dictionary, or English book — much less in a law book. I believe I may add, that up to this day, it has not obtained admission into any American dictionary, though at least one of them has been supposed to have taken in every word that could possibly be tolerated. But when used, it has not seemed to me, at least, to be in any definite sense. Like “heirs’1 in reference to personalty, it has appeared to be intended sometimes to designate children by it; at others, the widow and children, or all the kindred or a single one, that may be entitled to distributive shares or the whole property, by original right or by representation ; or even a person entitled to a share by assignment. I know, I have heard a single child called “sole distributee and also that one, who had purchased a share, “had become a *286distributee.” So, I had really supposed, that there was no meaning attached to the word by itself, in the mind of anyone, but that it varied in vulgar use with the context ; and that, therefore, it was wholly inappropriate to de. scribe a title to property in pleading and entries. In wills or contracts the Courts would be obliged to receive it in some sense, and would endeavor to discover that which would subserve the intention in the particular case. If, perchance, it were to find its way into a statute, the judicial duty would be the same. But that would not render it proper to transfer it into judicial proceedings. For legislators, like testators, take *the right to puzzle*Judges as much as they please and often do not trouble themselves much in the selection of terms. The same latitude, however, is not to be claimed by pleaders and clerks. Pleadings and the entries of judgments and decrees ought to be in the language of the law. For them there are precedents, settled long ago by the wise and the learned^ and used from generation to generation by those, who were and are as discreet and well informed as any among us can claim to be. I think it, and always thought it right to observe them, myself, and would fain beg the respect of others for them : asking, why despite should be done to forms venerable for their antiquity, certain in their meaning, and, for those reasons, ensuring order and precision in the despatch of business and the sense of records. The lawyer, who scorns to follow forms, may depend upon it, that he will not long love the law itself, for in refusing to conform to the patterns set by the law, he does despite to its essential elements of precision and certainty, and to some extent brings into disrepute the science itself. Why should terms, in which pleadings and entries have been expressed time out of mind, be rejected^ and in their room words made and adopted, which no two men here always use in the same sense, and which would be altogether unintelligible, for example, in West* *287minister Hall, and, indeed, in all other countries where our law and language prevail ? I own, 1 can see no reason for it; but, on the contrary, I am sure that it would greatly promote the ease of pleaders and Judges and the certainty of the Jaw, to adhere to the precedents as examples of the forms of proceeding, as well as standards for settling the principles of the law itself. One departure from the rule invites another, and this proceeds until no rule is left. I think Judges, with whom is the charge of preserving the law in its integrity and administering it uniformly, ought to reverence its established forms and steadfastly insist on their due observance, as the best guards of the law itself. It is always safe, *stare super antiquas vias.*In this case, for instance, if an inquiry were directed to ascertain, who are entitled to the personal estate of the deceased, and in what proportions, it surely would not be ordered in the terms of the petition, that is, to enquire “ who are the heirs and distribu-tees of the intestate Bonham.” If it would, I must say, it would be for the first time in this Court, since I have been a member of it. The word has now and then been in bills, but always with something else, which enabled the Court to reject it and then have enough to give the parties a title, as by saying, that the plaintiffs were the children of the intestate, or the like. But I am nearly confident, that no decree or order has passed under my notice with “distributees” in it, nor decree made upon a bill describing the title of the plaintiffs by it alone., I feel bound, therefore, to express the opinion, that the petition ought to be dismissed with costs. I should, perhaps, have no objection to remanding the case, if it had been asked, so as to let in amendments ; as it is probable the plaintiffs may be the widow and children of Bon-ham. But in truth, the petition is so defective and all the proceedings in the cause so very loose and informal, that the needful amendments would amount to much the *288same as a new petition. Besides, the questions between the parties can be better raised by a bill, making the administrator of Neil Henry a party, so as to make his estate, if any, directly liable for his *devastavit.*But as my Brothers think differently, the cause must, of course, be disposed of as they may order.

Pee. Curiam. Petition to be dismissed, unless the plaintiffs apply at the next Term to hear the cause remanded*