Killcrease v. Killcrease , 8 Miss. 311 ( 1843 )

Mr. Justice Clayton

delivered the opinion of the court.

This was a petition filed in the probate court of Claiborne county, by the appellants, requiring the appellee, as executrix, to file an additional inventory of the estate of her testator, and to give other and better security. The property sought to be made the subject of a further inventory consists of several slaves, which had belonged to Thomas Shelby, the first husband of the appellee. The petition states that these slaves had been in her possession for many years before her marriage with her last husband Killcrease, and were claimed by her, as her distributive share of the personal estate of her first husband. It also states that they had been in the actual possession of Killcrease from his marriage until his death, and that they constituted a part of his estate. His will is also set out, in which all his estate is given to his wife during her life, and one third of it to be at her disposal in fee simple ; the other two thirds at her death are to go to the appellants. Sholby, the first husband, died in 1829, and after the death of her second husband in 1839, the appellee upon her petition had the slaves in dispute sot apart to her as her distributive share of the estate of her first husband. This is charged to have been done to defeat the claim of the petitioners. It is also charged that no sale of the personal estate of Shelby was ever made; that these slaves were claimed and held by her as her portion from 1829, and that her possession and claim were concurred in by the other distributees of Shelby.

The petition was neither answered nor demurred to, but was dismissed by the court upon the motion of the defendant; and the case comes up by appeal from this order.

It is insisted by the counsel for the appellee, that this order was correct, because the way to compel a full inventory was by action upon the bond of the executrix. We think that this is too narrow a view of the subject; no doubt an action for the purpose might be sustained upon the bond, but we think the probate court likewise has jurisdiction in the matter, and power to compel a full inventory to be filed. If this is not the case, its jurisdiction in regard to the estates of decedents, which was intended by the constitution to be full and ample, and almost exclusive, will be far too confined to answer its ends and object.

This point disposed of, the question next arises, whether the slaves in dispute formed a part of the estate of Killcrease, and should be included in the inventory. We must regard the statements contained in the petition to be true, and consider the case as if it stood upon demurrer. The respective rights of the husband and wife, as the one or the other may survive, have been very fully considered and declared by this court at its present term in the case of Wade v. Grimes. By the principles there laid down, the rights of the wife to her personalty are at an end, when the property is reduced to possession by the husband during coverture, and the title becomes absolute in him. In this case the petition charges that the slaves in question were claimed by the appellee as her own, soon after the death of her first husband, and that her claim was concurred in by the other distributees of Shelby; that from the time of her second marriage they were claimed by Killcrease, and possessed by him as his own, until his death, and that they then constituted a part of his estate. If these things are so, and in the present state of the case we must consider them as admitted, these slaves form a part of the estate of Killcrease, and should be included in the inventory. This is certainly correct as to the parties before the court. The only other persons whose rights might be involved, are the other distributees of Shelby, and as they are not parties to this proceeding, they cannot be affected by it.

If the security given by the executrix was insufficient, it was the duty of the probate court to require her to give other that is good. How. & Hutch. 398, sec. 45.

The order will be reversed, and the case remanded, to be proceeded in according to the principles herein laid down; with leave to the appellee to answer, if she desires so to do.

Decree reversed.