The opinion of the court was delivered, October 17th 1866, by
Thompson, J.It is material to bear in mind in this case, that the widow and heirs are not seeking to recover property of the estate without letters of administration. Ordinarily this cannot be done. The proposed testimony raises a very different question, viz.: that the cattle, for which this suit was brought, were obtained by the defendant in exchange for a horse; the interest of the estate in the cattle having been purchased from the widow and heirs by his vendor, thfere being no debts whatever against the estate, and no administration. This it is contended conferred title to the cattle upon him, which could not be disturbed unless debts appeared.
No doubt the personal estate of a decedent vests in the administrator, but in trust for creditors and heirs or legatees. The mere legal estate passes to the administrator, the equitable descends upon the parties entitled to distribution. If there be no creditors the heirs have a complete equity in the property, and if they choose, instead of taking letters of administration, to distribute it by arrangement made and executed amongst themselves, where is the principle which forbids it ?
The parties to such an arrangement executed would be for ever equitably estopped from disturbing it, as amongst themselves, upon *373the most familiar principles of justice. And why-shall the arrangement be broken up by a mere intermeddler ? Family arrangements are favourites of the law, and when fairly made are never allowed to be disturbed by the parties, or any other for them. If there be no creditors in this case, the recovery of the value of the cattle would be only for the purpose of distribution among the heirs; but this they have done themselves, by an appropriation of the value already — and thus is accomplished What cannot be done over again without breaking up the -arrangement, and without manifest injustice to the defendant. Taking the offer as true, as we must in this stage of the case, we think the testimony should have been received. It was a good defence to the claim of the administrator. If there were no debts at the time the letters were granted, and no question of distribution requiring the intervention of an administrator, the expense of administering, the result of unnecessary interference, would not be a debt which would justify the proceedings. Lee v. Gibbons, 14 S. & R. 105, cited by the plaintiff in error, ha»s not much bearing on the point. There a trust was enforced by heirs, without administration, against a party who had declared that he held certain property of a decedent in trust for them, derived, it is true, from their ancestor. There were no debts. The declarations of the defendant were held equivalent to an express promise to the heirs, and hence the suit was maintained. To the same effect we held in a case not yet reported — Jones, Executor, v. Wade and Wife. These eases belong rather to a different class from the present. For the reasons, however, already stated, we think there was error in rejecting the defendant’s offer.
We do not knoAV whether this was a case of mere intermeddling or not by the plaintiff below, but it looks like it. He was a stranger to the decedent and the heirs, we are told; and although his letters of administration are valid until revoked, certainly he was not a party Avhom the law regards as entitled in the first instance to administration. If those entitled first to administration, the widow and heirs in succession, preferred a settlement of their OAvn affairs without going into the Orphans’ Court, and could do it Avithout interfering with the rights of others, the law did not forbid it, and a stranger might well have afforded to forbear interference, the effect of which was to disturb an amicable family arrangement.
The other assignments of error are to the charge — to which there does not seem, by the paper-books, to have been any exception. Not appearing there, we ought to take it that there was no exception taken. The rules of court require that all exceptions intended to be insisted on should appear in the paper-books.'
As to the first of these assignments we may remark, however, as the case goes back, that if there was a joint oAvnership between *374Torrey and Capron of the cattle, Trout v. Kennedy, 11 Wright 387, is an authority in point that the former could not have maintained trover against the latter for, a mere sale of them. Could he against his vendee ? That is perhaps a different question. The case of Agnew v. Johnson, 5 Harris 375, recognises the right of one tenant in common to recover, against a stranger, the value of his interest in property diverted from its original purpose by a sale to such stranger, who claims the exclusive possession. But the same authority shows that such plaintiff can only succeed in the absence of a plea in abatement to the nonjoinder of all the co-tenants as plaintiffs. Without this the party would not be entitled to recover more than the value of his own share. It would seem to us, therefore, that there was error in the instruction to the jury to find in favour of the plaintiff the full value of the cattle, without the qualification that they should be of opinion that there was no tenancy in common in the cattle between Torrey and Capron.
This is noticed not as a ground of reversal, for the reason already stated, that it was not excepted to, but that error may be avoided in this particular if the case be again tried. If there was no joint ownership of the cattle as between Torrey and Capron, then it was a case of bailment; and unless the offer of the defendant to prove a purchase from the widow and heirs be fully made out as already noticed, the plaintiff would be entitled to recover, without something different from what thus far appears is interposed.
Judgment reversed, and venire de novo awarded.