24 Miss. 85 | Miss. Ct. App. | 1852
delivered the opinion of the court.
On the 14th day of December, 1843, Josiah Marshall intermarried 'with Missouri King, and on the 13th day of February, 1846, Adathea Marshall, the only child and issue of this marriage, was born. Mrs. Marshall died during the year 1847, and left her surviving, the appellees, the children of a former marriage, and the appellant, a child by the last marriage. At the date of the marriage with Marshall, Mrs. King possessed certain slaves in her own right, of which slaves, she died seized. The appellees contend, that they are entitled to distribution of the slaves in equal portion, with their half sister, the child of the last marriage. For the appellant it is insisted, that by virtue of the fourth section of the act of 1839, Hutch. Code, 496, 497, “to secure the rights of married women,” all the slaves of which Mrs. Marshall died seized, vested in her.
By the provisions of that section, it is declared that all slaves which a married woman holds, by virtue of the act of 1839, shall, upon her death, “ descend and go to the children of her and her said husband jointly begotten; and in case there shall be no child born of the wife, during such, her coverture, then such slaves shall descend and go to the husband and his heirs.”
If this law stood unchanged, the right of the appellant to the slaves in controversy would be unquestionable. But by the first section of the act of 28th February, 1846, Hutch. Code, 498, the above section of the act of 1839 was repealed; and the sixth section of the act of 1846 declares, if a married woman “ die possessed of slaves, or other personal chattels, as her separate property, leaving issue of her body, either by a former husband, or by her surviving husband, such slaves and other personal chattels, shall descend to her child, or children, in equal shares.” It is very clear, that the children of Mrs. Marshall, by the first marriage, according to the provisions of the above statute, are entitled to an equal share of their deceased mother’s property, with the appellant Adathea, unless, indeed, the position taken by the counsel for appellants be correct, and the act of 1846 be unconstitutional and void, because it takes away rights, which, under the statute of 1839, had vested in the appellant.
The question then arises, did the appellant, by virtue of the
Tested by these definitions, had the appellant a vested right in the slaves ? It is clear, beyond dispute, that she did not have, at the passage of the act of 1846, an immediate right of present enjoyment, because, at that time, her mother was alive and had title to the property, the use and possession of which was in the husband during her life, and could “ only descend or go to ” the child at her death. Did she have an immediate fixed right of future enjoyment ? By the act of 1839, the absolute and unqualified title to the slaves was in the wife, “ subject to the control and management of the husband; the direction of then labor, and the receipt of the productions thereof by him;” and the slaves so owned “could be sold,by the joint deed of the husband and wife, executed,” &c. See § 5, of act of 1839, Hutch. Code, 495. If, then, the title or fee in the slaves was in the wife, and they could be sold and disposed of by the deed of her husband and herself jointly, so as to defeat the' inheritance of the child on the death of the mother, the proposition seems clear and unanswerable, that the child did not have any present right of future enjoyment, but only such right in the slaves, as every child has in the property of his ancestor, to wit, a right to inherit and possess the same, according to the laws of the land in force at the death of the ancestor. And it has been held, in relation to property of this kind, that the “ rights of heirs arise from the death of the ancestor, and that property found in succession, is regulated by the law in force at the time it is opened, no matter how different or contrary thereto the rule may have been when the estate was acquired.” 4 Louisiana, R. 191. Entertaining this view, we do not think the act of 1846 took away any right vested in the appellant by the act of 1839, to the slaves in controversy, and that the appellees are entitled to share them equally with their sister Adathea..
Upon examining the authorities upon this point, we find the rule to be established in accordance with this position. In the case of Browning et al. v. Watkins et al. 10 S. & M. 485, being a suit brought by distributees without the intervention of an administrator, the court says, “ they can claim only as distribu-tees, and not as the legal representatives of "Watkins. Where there is no general personal representative, a special administration, limited to the subject of the suit, is generally required.”
In Maryland, it has been held, that property remaining specifically after the death of the original executor or administrator, is unad.ministered property, and the appointment of an administrator de bonis.non in such case, is indispensably necessary to give title to the distributees, even though all the debts are paid. A court of chancery has no power to vest property so situated in the distributees, except through the medium of such administrator. Hagthorp v. Hook, Adm’r, 1 Gill & Johns. 270.
In New York, a like rulé prevails. See Jenkins v. Freyer, 4 Paige, R. 47; Woodin v. Bagley, 13 Wend. 456. So also in South Carolina, 2 McCord’s Ch. R. 169. And in Kentucky, a similar rule prevails. 5 Monroe, R. 574 ; 7 Ib. 217.
Upon a review of all the cases, we think the rule very clearly appears to be, that, to enable the distributees to obtain or recover their distributive shares, it is necessary that administration should be taken on the estate, through the medium of which, the property may be recovered and distributed, according to the law. In this view of the case, the demurrer was well taken, and should have been sustained. We must, therefore, reverse the cause, and remand the same, with directions to the court below to sustain the demurrer and dismiss the petition. We have not examined into the question of jurisdiction in this court, as counsel have not made it on either side, but have submitted the casé solely on the other points.
