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NEALE v. HAGTHROP. 565
child, who is regarded as a then living, though unborn distributee.
And therefore, should a distributee die before the distribution of
the surplus is actually made, his share will not sink into the estate
of the intestate; but go to his own legal representatives in like
manner as his other personal property, (j)
Hence it is clear, that, in no case can a next of kin make title to
a distributive share otherwise than through an administrator; who,
in equity, is regarded as a trustee for the creditors and next of kin;
and as such may, in Chancery, be called to account by all or any
of them, (k) And every one who takes possession of the per-
sonal property of an intestate, after his decease, may be sued at
law or in equity by a creditor as an executor de son tort, and
charged accordingly. (f) And, in equity, he will be considered
as a trustee, and held accountable to the administrator, no matter
how long he may have had possession before the administration
was granted, (m)
It has been declared, that many widows or others, having the
deceased's effects in their hands, and right to the administration
thereof, designedly suffer other persons to administer, whose
mouths are easily stopped with part of the estate's being delivered
them, and bring only such part of the appraisement, to the great
dishonour of the deceased, and deceit of the living; for prevention
whereof as well as of frequent tedious suits for the detecting such
concealments, it was enacted, that the court might in a summary
way, cite such persons before it and examine and decide on the
matter, (n) Here the distributees having a right to the adminis-
tration are specially designated, and it is expressly declared, that
they shall not retain or hold any of the personal estate of the de-
ceased; and if they do conceal any of it, they are made liable in a
summary way, as wrong-doers.
If the law were otherwise; and if each creditor and every one
next of kin were allowed to help himself to what he thought his
due; to seize upon and in any manner by his own act alone ac-
quire a legal right to the personal property of an intestate, the
greatest confusion would ensue, and the most monstrous frauds
might be perpetrated. No letters of administration would be taken
out in any case; but, on the death of every one who had left any
(j) Dep. Com, Gu. 114; Edwards v. Freeman, 2 P. Will. 446; 1708, ch. 101,
sub ch. 11, s. 14. —(k) Elibank v. Montolieu, 5 Ves. 742; Conway v. Green, 1 H.
& J. 151. —(J) Webster v. Webster, 10 Ves. 93. —(m) Boteler p, Allington, 3 Atk.
459; Fishwick v. Sewell, 4 H. & J. 394. —(n) 1719, ch. 14, s, 7.
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