Caruthers v. Wilson , 9 Miss. 527 ( 1844 )

Mr. Justice Clayton

delivered the opinion of the court.

This was a petition filed by the widow of the decedent, in the probate court of Holmes county, against the administrator, to obtain an allotment of dower. The administrator opposed, as a bar to her claim, the fact that the petitioner had made way with and disposed of, the whole personal estate of the decedent, consisting of slaves and other personalty, of greater value than her dower in the real estate, which was all that was sought by the petition. The probate court granted the application, and directed the dower to be laid off, from which order the cause is brought to this court.

It is difficult to discover any principle on which the court could have made a different decision. A sale of the personal estate by the widow, or running off the slaves, could not affect the rights, either of the administrator or of the creditors. It might occasion some trouble and embarrassment in the operation and exercise of their rights, but it could not impair or aLter them. A transfer by any one, without competent authority, would not affect the title. -

The probate court has full jurisdiction in regard to the allotment of dower. The seisin of the husband during the coverture, connected with the fact of non-alienation on her part, seem to be quite sufficient to establish the claim of the widow. Randolph v. Doss and wife, 3 How. 205. But if a collateral inquiry is to be instituted, whether the widow has been guilty of tortious acts, and has appropriated property which does not belong to her, but to the estate, before her right to dower is to be recognized, it will call for very different powers from those which belong to a probate court in the exercise of its acknowledged jurisdiction. The proceeding, instead of a summary one, as directed by the statute, may become almost interminable.

As between the widow and the administrator, or the creditors, this is not the mode to try the right to the personal estate, or to try whether the widow has committed trespasses upon the estate. These must be laid wholly out of the view, and when put aside, there is nothing in the case to prevent the allowance of dower. For any wrongful acts, the petitioner will be responsible in another form of proceeding.

The decree of the probate court will therefore be affirmed.