26 Miss. 414 | Miss. | 1853
delivered the opinion of the court.
It appears by the record that the probate court on petition, appointed commissioners to divide certain lands and slaves belonging to the estate of John Rail, deceased, according to his will, among the devisees and legatees. Upon the return of the report of the commissioners to the probate court, the plaintiffs in error, who were parties in the division, filed exceptions to the report, which were overruled and the report confirmed, and thereupon the matter is brought here by writ of error.
The first ground of exception is, that the commissioners having been appointed to divide both lands and slaves, made partition of the slaves only. It is true, the law requires that the real and personal estate shall be divided by the same commissioners in such cases. Hutch. 670, § 112; lb. 673, § 2. But
The second ground of objection is, that one of the slaves who was run away at the time the division was made, but returned before the report was made and returned, was not included in the division. We do not think that this would be, of itself, a sufficient ground for setting aside the report; but inasmuch as a new division will have to be made for another reason, this objection can be obviated when the new division comes to be made.
The third ground of exception was, that one of the slaves allotted to the parties excepting, died before the report of division was drawn up or signed by the commissioners, and of course 'before it was returned to and confirmed by the court. This is admitted to be true, and it is also admitted, that on the day of the division, the slaves were delivered by the commissioners to the respective parties to whom they were allotted, including the slave in question. It does not appear that the death of the slave was occasioned by any fault or misconduct of the party to whom she was allotted. The question, then, arises whether the party to whom the slave was allotted should bear the loss, or whether it should be borne equally by all the parties, and a new division made.
It is insisted in behalf of the defendants in error, that the condition of the property at the time the division was made, must determine the question whether the division should be confirmed by the court; and that if the division was just and proper 'at that time, it should not be "set aside for casualties occurring
Under these circumstances we are of opinion, that the loss should fall equally on all the parties, and that this exception should have been,allowed.
The fourth exception is, that, in making the division, the commissioners awarded the payment of small sums of money by some of the parties to the others, in order to equalize the shares; and, it is said, the commissioners had no power to do more than to make an equal division of the property. The probate court is clothed with full jurisdiction to appoint commissioners to the end that an equal division of the property may be made. It often occurs that a division exactly equal is impracticable. Must the power to make division fail in such cases ? It would appear not; and we are disposed to hold that the power to equalize the shares by requiring the difference to be paid in money by those receiving more valuable portions, is an incident to the general power of the court to cause an equal division to be made; and that it should be exercised in cases where it appears by the report of the commissioners that other
Upon the matter contained in the third exception, the order of the probate court disallowing that exception, and confirming the report, is reversed, and the case remanded for further proceedings, upon the principles herein stated.