By the Court. —

delivering the opinion.

We respectfully submit that the counsel for the plaintiff, neither in the bill of exceptions, nor in his argument before this Court, represents Judge Fleming correctly in this case. He has -fallen into the error unintentionally, of course. For instance, the first complaint is, that His Honor erred in allowing the evidence of Canaan Young to go to the jury for the purpose of showing that any division had been made by the heirs of the estate of James Charles Anthony Desverges, without administration; and he cited the case of Turk, in 3d Kelly, as direct authority to- this point. He omits, however, to state the reason assigned by the Court for overruling the objection to this testimony. It was not because a distribution of the estate by the heirs, who were sui juris, was a bar at common law to an action brought by an administrator. The Court nowhere decides this; and hence, there is no conflict between this case and the rule laid down in Turk’s case. But the Court overruled the plaintiff’s objection, holding: “That after the lapse of twenty-seven years, an administration would be presumed, and that such a defense was a good defense in this suit.” And we think it undoubtedly is, without invoking the aid of the decision in 27th Geo., which, for myself, I believe to be good law.

As to the complaint in permitting the division of the property to be proven by hearsay, we would ask: Is there any question that a division was made? Do not the plaintiff’s witnesses establish the fact ? — I mean a division de facto — whether de jure or not, is another thing. Mrs. Margaret Heald, the mother of the plaintiff, testifies that Mrs. Wallace divided the land and negroes, leaving out Hetty, and appropriating her to herself, and that James M. Desverges used his utmost influence to prevent it; who told his mother, Mrs. Wallace, when she took the girl into her possession, that she belonged to the estate of his father. Still, the fact is not denied, that a division of the land and negroes was made. As to the hearsay testimony then, if it be such, *756we deem it wholly immaterial in this case. It is in proof by the plaintiff, that James M., the father of the plaintiff, went so far as to consult counsel how he should proceed in the business. Why talk, then, about the manner of proving that the property was actually divided into three parts? Whether into equal and just proportions, does not appear; nor is it necessary that it should, so far as the points in this case are involved.'

Another error assigned is: That the Court charged the jury, that if they found that division had been made, although at the time one of the heirs was not consenting to a division, but subsequently took the part that was allotted to him, whether an equal portion or not, his taking of such portion would be a waiver of his objection to the division, and would make it good. ■

We hold this, too, to be sound law; and that the letter written by James to his brother John, the defendant, and dated April ist, 1834, furnishes the strongest possible evidence, not only that a division had been made, but that he acquiesced in it. The preservation of this letter seems almost to be Providential. It is proof in writing, under the hand of the father of the plaintiff, and would be difficult to overcome. It shows more, namely: That the division had not disturbed at all the family relations. Affectionate reference is made to the very mother who is charged to have acted unjustly in ’ the matter of the division. And this is the last that we hear from this son and brother, until he disappears entirely from the toilsome strife of sublunary care. His remains have rested in peace for nearly thirty years. Let them not be disturbed until the trump of the archangel shall sound!

JUDGMENT.

Whereupon, it is considered and adjudged by the Court, that the judgment of the Court below be affirmed.