#### Tollison Kerby *v.*William B. Quinn.

An administrator who has never had possession of the *goods of*his intestate, may notwithstanding maintain trover *in This own name,*for a conversion of such goods after the death of the intestate.

The general rule is, that the owner of a chattel *entitled*tó *immediate possession,*may maintain trover against a wrong doer; the legal effect of granting administration, is to vest in the administrator the *legal estate,*in all the intestate’s personal property, and this has relation back to the death of the intestate. He is the legal owner, the letters of administration are the evidence of his title, and hence for a conversion in *his own time,*he must always produce and give in evidence the letters of administration_ (S. P. Browning v. Huff, 2 Bail. 174.)

In such a case, it is not necessary'or proper that he should sue in his representative character, or style himself *administrator.*

*265
      *Before EVANS,*/., *at Spartanburg, Fall Term,*1838.

Tras was an action of trover for a cream-colored mare and some cotton, alleged to be of the *proper*goods and chattels of the plaintiff and to have been *converted*by the defendant to his own use. The facts and questions arising in the case, will more fully appear from the report of his honor the presiding judge, which is as follows:

“The plaintiff was administrator of-one Berry Quinn, son of defendant, who died at his father’s house in December, 1835. The action was in the name of plaintiff, without styling himself administrator. The property sued for as Berry Quinn’s, had never been in the possession of the plaintiff. It had remained in defendant’s possession from the death of his son Berry. A motion was made for a nonsuit on the ground, that the plaintiff should have sued as administrator. I was inclined to think the action should have been so brought, although the conversion was after the death of the intestate. This seems to have been decided in the case of Cockerill v. Kynaston, 4 T. R. 280; but the subsequent cases render , the question somewhat doubtful. I thought it best to send the case to the jury, who found for the plaintiff.”

After the service upon his honor of a notice of appeal, in this case, upon the grounds hereafter mentioned, he made the additional report which follows:

“ After the motion for a nonsuit was refused, and whilst the case was under discussion before the jury, I made out the foregoing as a report, supposing there would be an appeal. Since the trial the annexed notice has been given me, which requires some further report of the case. The second ground alleges for error, that the jury were instructed to allow interest. It was proved, the services of the mare were worth $20 per annum. I told the jury the plaintiff was entitled to recover the value of the mare and compensation for her use, but advised them to allow the legal interest on her value as a fair compensation for her services, which was less than $20. I did not charge them to give interest on the cotton; nor do *266I know that they did; but if I had so charged, I apprehend it would have been right. In relation to the third ground, I will remark, that the proof on the subject of demand was, that at the time of the appraisement the plaintiff demanded all the property of Berry Quinn — some articles of apparel and other things were produced, and the defendant denied that there was any thing else which was the property of Berry Quinn. Besides, it was clearly proved the defendant had had the cotton gathered and picked, and carried it away from the gin.”

The defendant gave notice of an appeal in this, case, and now moved this court for leave to enter up a nonsuit, and in arrest of judgment, on the following grounds:

1. Because the action was brought in the name of Tollison Kerby, and there was no proof that he had either a general or special property in the chattels sued for: either at the time of the action brought, or at any other time.

*2.*Because the plaintiff proved the cream-colored mare and the cotton, for which this action was brought, to have been in defendant’s possession previous to and at the time the action was brought. And that said property was in *defendant’s possession*previous to and at the time *letters*of administration were granted to Tollison Kerby, on the estate of Berry Quinn.

3. Because the plaintiff, having declared in his *own*name and upon his *own*possession, cannot recover as administrator of his intestate, and on the right and possession of his intestate, not having declared in his representative character of administrator.

4. Because the plaintiff, never having had possession of the chattels sued for, nor a general property in them, cannot maintain an action of trover for them, except in his representative character of administrator; the conversion being previous to, or at the time of his intestate’s death, which was proved in this case to have been so.

And failing on these grounds for a nonsuit, he moved the court for a new trial on the following grounds:

1. Because the- only count in the declaration, states that Tollison Kerby was possessed of the goods sued for as his own proper *267goods, while the whole of the proof introduced by plaintiff went to show that they were the goods of an intestate, Berry Quinn, on whose estate the plaintiff had administered. To permit this, operated as a surprise on the defendant, he being required by the writ and declaration, only to show that the defendant had not converted the proper goods and chattels of Tollison Kerby.

2. Because his honor charged the jury to find for the plaintiff, if they believed from the evidence, that the mare and cotton belonged to Berry Quinn’s estate, and to give interest on what the mare and cotton was proved to be worth, from the time of the demand, which was previous to the alleged conversion of the mare, by plaintiff’s declaration.

3. Because there was no demand proven to have been made by the plaintiff of the defendant, for the cotton sued for. And it was in proof that the defendant was picking out the cotton previous to the letters of administration being taken out.

Curia, per Evans, J.

This case presents the question, whether an administrator, who has never had possession of the goods of his intestate, can maintain trover in his own name for a conversion, after the death of the intestate. The general rule is, that the owner of a chattel, entitled to immediate possession, may maintain trover against a wrong doer. The legal effect of the granting administration, is to vest in the administrator the legal estate in all the intestate’s personal property, and this has relation back to the death of the intestate. He is the legal owner, and the letters of administration is the evidence of his title. Hence, for a conversion in his own time, he must always produce and give in evidence the letters of administration. — (Browning v. Huff, 2 Bail. 174.) — It is the evidence of his title and cannot be dispensed with. The plaintiff is required in trover to set out his title in his declaration. It is sufficient to maintain the action, to allege and prove that he is the owner of the chattel sued for. If he prove bn the trial that A. B. was the owner and that he is the administrator of A. B., he establishes the title in himself, as fully as if he had proved that A. B. in his life time had conveyed the property to him by deed. The letters of *268administration and the deed are but the evidence of his title, and he need not style himself the administrator of A. B. in the one case, any more than he should style himself the assignee of A. B. in the other. The principle is fully recognized by the case of Hollis v. Smith, 10 East. 293, and in Ballard v. Spencer, 7 T. R. 358, and in our own cases, 2 Bay. 166, Ford v. Travis, 2 Brev. 299, 1 Bail. 79, 2 Bail. 318, where it has been held, that if an administrator sue on a cause of action which arose in his own time, and fail, he shall pay costs, and the reason is because he might have sued in his own name. There is nothing in the other grounds set -out in the brief, which requires any opinion.

*H. II. Thompson,*for the motion.

*Henry*& *Bobo,*contra.

The motion is refused.

O’Neall, Butler and Earle, Justices, concurred.