EDWARDS against HOOPES, 2 Whart. 420

Sergeant J. Nathan Taylor,‘one of eight children of Enoch Taylor, deceased, took a tract of land in. Chester county, in a proceeding in partition in the Supreme Courty'which had belonged to his deceased father, at ihe sum of £2126 8s. 4d., at which it had been appraised by the jury, subject to a lien thereon, in favour of the parties to the partition, (consisting of himself and the other children,) for their respective shares under the act of 11th of April, 1799. Nathan Taylor conveyed to Joseph Baker in fee simple.

All the right of Baker was afterwards sold by the sheriff on a subsequent judgment and execution against him, to Joseph Miller, “ subject to all legal incumbrances by mortgage, or otherwise created prior to the entry of the judgment on which the premises were sold.” Miller conveyed to the defendant, subject (among other things) to the payment of the annual dower, being the interest arising on $1687 50, to, the widow of Enoch Taylor, during life, “ and at her decease, the payment of the said principal money, to and among the legal heirs of said Enoch Taylor deceased,” The plaintiff received assignments from the heirs, amongst whom was Henry Taylor, son of Nathan Taylor deceased, and now contends that he is entitled to the whole sum of $1687 50, with interest from the decease of the widow.

The court below rejected .this claim, so far as respected the share of Nathan Taylor, Nathan Taylor becoming the owner of land out of which he was to receive a share of the money charged upon it, and being thus both payer and receiver, the charge'was extinguished, and the land passed from him to Baker, free and exonerated therefrom; when conveyed by the sheriff to Miller,. subject to all legal incumbrances by mortgage or otherwise, created prior to the entry of the judgment on which the premises were sold, this share was not a legal incumbrance.

The next deed to the defendant subjects the land to the payment of the sum of $1687 50, to and among the legal heirs of Enoch Taylor. In order to claim under this, the plaintiff must show a right in Henry Taylor, to a share as the legal heir; but it is clear no such .right existed in his father, or could be transmitted to him. The case of Reigle v. Seiger, (2 Penn. Rep. 348,) resembles the present. There land had been taken by a son at a valuation, subject to the widow’s third, and was afterwards sold at sheriff’s sale.

It was held, that the son could not recover from the purchaser at sheriff’s sale, his proportion of the third, after the widow’s death; although by the condition of the sheriff’s sale, the land was taken by the purchaser, subject to the widow’s dower, the interest to be paid to her yearly, and after her decease, the principal to be paid to the heirs. Another point in this case is the following. After the decease of the widow, the children, or their representatives, assigned to the plaintiff all their right and title to the widow’s thirds or annual sum, as well as the principal sum and interest due thereon.

There were due to the widow in her life-time, some arrears of her income not received by her, which the assignors claimed as next of kin to'her, under the intestate law. For the amount, the defendant gave his bond to the plaintiff, and the question is, whether the consideration for the bond wais a good one, the defendant contending that the assignment passed no title to the 'arrears of income, and that the defendant is liable to the administrator of the widow.

The plaintiff says that the children, being the next of kin, are entitled as cestui que trusts; that if the administrator recovered be would be liable over to them, which would be going through a needless circuity of action, to attain the same result. We are of opinion, however, with the court below, that the objection is insurmountable. It is well settled, and it is a principle too salutary to be departed from, that none but the executor or administrator has a legal right to dispose of the property and credits of the deceased, or intermeddle with them.

Whatever might, after a settlement according to law, be the ultimate rights of the next of kin, these officers are the channel through which the property must in the first instance pass.

If a child or next of kin, or even a creditor, whose claim is superior, could under any pretence step in and deal directly with the assets, it is obvious that letters testamentary, or administrations would seldom be resorted tó, and that the precautions of the law for the selection of competent tfustees for all concerned; for giving security; for requiring refunding bonds; and for transacting the affairs of the deceased under legal supervision, would be defeated. There can be no doubt the administrator of the wife could recover this money again, though the defendant should pay it to the plaintiff.

For a full view of the reasoning on this head, 1 refer to the opinion of this court, delivered by Mr. Justice Kennedy, in the case of Eisenbise v. Eisenbise, (4 Watts, 134,) where it was decided that a payment by a debtor to any other than the executor or administrator of the deceased, is a mis-payment, and the money so paid may be recovered back by the executor or administrator. Judgment affirmed.