delivered the opinion of the court.

*240This was an action of replevin brought in the circuit court of Chickasaw county, by the guardian of Richard M. Rockett, a minor, against the plaintiff in error, to recover the possession of certain slaves.

The jury found a verdict for the plaintiff, whereupon the defendant entered his motion for a new trial, which being overruled, he filed a bill of exceptions, which contains a full statement of the facts of the case.

From which it appears, that the slaves in controversy, as it was alleged on the part of the plaintiff, were the property, acquired by donation from the plaintiff in error, of Mrs. Rockett during her lifetime, who was the wife of the plaintiff, and the mother of the said Richard.

Mrs. Rockett died in possession, and the property is claimed by the said Richard, who was her only child, under the act of 1839, passed for the protection and preservation of the rights of married women.

The pleadings in the case admit the character in which the plaintiff sued; and, conceding that Mrs. Rockett was proved to be the absolute owner of the slaves at the time of her death, the question arises, whether the title thereto vested in her administrator, or directly in the ward, by operation of the statute ?

This question was considered in the case of Marshall v. King, 2 Cushman, 85; and it was decided, that slaves held by a feme covert under the statute above cited, did not vest in her children upon her death, but in her administrator.

We perceive no sufficient reason why we should depart from that decision; and shall, therefore, adhere to the rule therein laid down.

It was in proof on the trial below, that administration had been granted upon the estate of Mrs. • Rockett; there was, therefore,.an investiture in fact of the legal title in the administrator. So long as that title remained in him, he, and not the heir or distributee, was the only person who could maintain an action at law for the recovery of the possession of the said property.

The proof also shows, that there had been no distribution *241made of the estate of Mrs. Rockett, nor bad the said slaves been delivered or turned over to the ward or to his guardian.

The ward, therefore, never had the legal title to the slaves; Whence'he had no right to the possession which remained in the administrator.

But the right of possession or a right of property, which, when it exists in reference to a chattel, generally carries with it a right of possession, is the- necessary foundation of the action of replevin. The defendant in error not having the legal title or the right to the possession, was not entitled to recover. The verdict was, therefore, wrong, and should have been set aside.

But it is said, the defendant in error was legally in possession of the slaves, and that they were taken out of his possession wrongfully. The evidence may sustain this position; but in order to authorize the maintenance of this action, it was indispensable that the right of possession should have been in the ward. We have above seen, that the ward never had the right of possession, and it is not pretended that he ever had possession in fact. During the life of Mrs. Rockett, the defendant in error was in possession jointly with her, or had possession by virtue of his marital rights; but upon her death his right of possession ceased, and all of her rights went to her administrator. But if it were admitted, that he had the right of possession at the time of the alleged wrongful taking, such right of possession would authorize a recovery in his individual character, but not in his capacity of guardian.

Let the judgment be reversed, cause remanded, and new trial awarded in the court below.