Green v. Green , 3 Miss. 256 ( 1844 )

Mr. Justice Claytíw

delivered the opinion of the Court.

This was a petition, or bill filed in the Probate Court of Claiborne county, by the appellant, as executrix of her deceased husband, against the legatees of his estate. It sets forth large claims in favor of the appellant against the legatee, running through some twelve or fifteen years, and consisting principally of charges against them for maintenance and education. Her account as executrix has never been settled. The bill prays, that an account may be taken among all the parties interested, that a final settlement may be made, the estate divided, and the negroes sold, if necessary, for that purpose.

By the will it is provided, that in the event of the death of any of the children before the age of twenty-one, and without issue, his or her share shall go to the survivors. One of the children did die under those circumstances, and the executrix in her petition treats the share of the one so dying as a part of the testator’s estate, and includes that in her petition.

A demurrer was filed to the petition, which was sustained by the Court, and the petition dismissed, from which order of dismission the case is brought to this Court.

The proceedings assume a plenary form without any order from the Judge of Probate. It seeks to bring into contestation matters entirely distinct, the estates, namely, of the original testator, and of one of the legatees, who died within the time limited by the will and without issue. No excuse is shown for a failure to settle the estate in the usual way, and the petition seeks to have a sale decreed not to pay deb,ts of the testator, but debts alleged to be due from the legatees to the executrix, for maintenance and education.

The legatees now appear to be all of a full age, and if they are indebted to the petitioner, her remedy is not by proceeding in the Probate Court. That Court has no jurisdiction over some of the objects embraced in the petition ; and from the frame of the petition in other respects, especially in joining incongruous interests and subjects, cannot be maintained.

We think the order of the Probate Court dismissing the petition was correct, and we direct it to be affirmed, without prejudice, however, to any future proceedings the petitioner may institute.

Decree affirmed.