The distributees or next of kin can maintain no suit, either at law or in equity, for the mere purpose of distribution, until letters of administration have been duly granted upon the estate of the deceased. This principle is well settled by authority, but even without decided cases, no other rule: could obtain, for the reason that the law casts the title to all the personal-estate of the decedent upon his personal representative. Ic is true that lie holds the title as trustee to pay the debts, in the first instance, and then to make distribution according to tins *669gtatute amongst those entitled. But until letters of administration have been granted, the legal title cannot be brought before the court, and therefore it cannot be bound by a decree; nor can the court see that the trusts hare been executed. For instance, if the next of bin should file their bill for distribution and a decree should be rendered, it could not bind the administrator who might be afterwards appointed; nor would such a decree afford the slightest protection to those against whom it might be rendered, as against the claims of the administrator. In the case of Bradford v. Felder, (2 McCord’s Ch. R. 168,) the question was, whether the next of kin could file a bill in equity for the recovery of property, no administration having been granted on the estate of the deceased. The Court of Appeals of South Carolina held that they could not. In the case of Taylor v. Brooks (3 Dev. & Bat. 139,) the question was, whether the next of kin, before final distribution, could maintain detinue for a slave, the administrator having died before the full and complete administration of the estate. The Supreme Court of North Carolina held that they could not. In the case of Alexander v. Stewart et al., (8 Gill & John. 226,) the question was, whether property remaining in specie, and which was left unadministered by the executor -who had died, could be recovered by the distrib-utees by bill in equity, it appearing that there were no debts against the estate of the testator. The Court of Appeals of Maryland held that it could not.
With these decisions I am entirely satisfied; for it is the object of all courts, especially courts of equity, to put an end to litigation, and to protect those who may be compelled to obey their decrees ; but if the legal title is not before the court, no decree can be rendered that will bind it, nor will the performance of i.he decree by the defendant afford him any protection. Instead, therefore, of ending litigation and binding the rights of the parties, if courts of equity were to proceed at the suit of the dis-tributees, without having the title of the administrator before them, their judgments might become the sources of litigation and injustice.
But it is argued that this rule will not apply to legatees, although no letters testamentary have been granted to the executor, nor letters of administration with the will annexed to any other person, because the executor may assent to the legacy be*670fore the probate of the will or the grant of letters testamentary to him, and that this assent will give the legatee a perfect title to the legacy, and he may sue in respect to it, either at law or in equity, as the case may require. In England it is true that the executor derives his title and authority from the will, and therefore if he assent to a legacy even before probate, and should die without taking out letters testamentary, nevertheless bis assent shall stand firm, and the legatee’s title will be perfect. — 1 Will, on Ex. 160. But in this State it has been long settled, that our statutes have changed the common law in this respect, and the executor here is not entitled to exercise any power as such, until he has been qualified to act in the mode pointed out by the statutes.—Cleavland v. Chandler, 3 Stew. 489. Hence it follows •that until letters testamentary have issued to him, he can give no ¡assent to a legacy that will pass the legal title, nor bind the estate which he represents; for his authority is not with us, as in ¡England, derived solely from the will,'but from his letters testamentary. Applying these general rules to the bill and the proof, it is clear that the complainants, whatever may be their ultimate rights, cannot recover in this suit;
The bill alleges the making of the will, and shows the character of the legacies. It also is averred that the will was admitted to probate, but the bill does not allege that letters testamentary were ever taken out by the executrix, or that letters of administration were ever granted to any one; nor, indeed, that the executrix ever assented to the legacy. The proof too wholly fails to show that letters testamentary or of administration were ever granted upon the estate of the testator. Under such allegations and proof no relief can be had, for the legal title to the property is not before the court,. and no binding decree can be rendered in reference to it. Nor is the view we have taken of this case inconsistent with the case of Vanderveer v. Alston et al. (16 Ala. 494.) In that case the legal title was before the court, and the decree was binding on the administrator as well as the distributees. We are entirely satisfied, that according to the well settled principles of equity, no relief can be granted in this suit, neither according to the bill, nor the proof.
The decree must therefore be reversed and the bill here dismissed ; but it will be without prejudice to another suit properly brought.