A. B. Bacon, Administrator, &c., v. John Tyner, 26 Miss. 190

Mr. Justice Fisher delivered the opinion of the court. The appellant, as administrator ad colligendum of the estate of Owen Richardson, deceased, filed this bill in the vice-chancery court at Monticello, to recover an undivided interest of certain slaves in the possession of the appellee, and which it is alleged the intestate in his lifetime owned jointly with the appellee. The important allegations of the bill are these. About the year 1801, in the State of South Carolina, one Pearce Tyner conveyed to his son, John Tyner, and to his daughter, Sarah Tyner, a certain negro woman.

The deed was duly proved and admitted to record in that State. The donor, during his residence there, continued in the possession of the slave and her increase. About the year 1817 he removed to this State, and brought with him the slave and her increase. He continued in possession of them here till his death, which occurred about the year 1844. A short time before his death, the appel-lee, claiming title under the deed of gift, filed a bill against his father to recover the possession of said slaves.

Having, after the death of the father, obtained possession of the slaves, the bill was by the appellee abandoned, and no decree made thereon.

It is further alleged that Sarah Tyner, the donee jointly with the appellee in the deed of gift, about the year 1815, in the State of South Carolina, intermarried with Owen Richardson, the intestate; that about a year thereafter she gave birth to a child; that she died in said State a few days thereafter, leaving the child her surviving, and that her child, under the laws of that State, took the mother’s interest in the slaves; that soon after the death of the mother the child died; and that the father, under the laws of South Carolina, took the property which had descended to the child.

This is the case, as alleged by the complainant in his bill. It will be perceived that to sustain the bill set forth, it must be shown that the child survived the mother, and that Richardson, under the law, took as next of kin to his child. The answer on this subject contains a broad and unequivocal denial, and so far from there being any proof to sustain the allegations of the bill, it in the fullest manner sustainthe answer.

Indeed it is not pretended that a recovery can be had upon this part of the bill; but it is insisted that the title of the wife by the law, vested by virtue of the marriage in the husband; and that this is the title which the complainant now seeks to recover. It is impossible for this court to say under the proof in the cause, what the law of South Carolina, at the date of the marriage, was on this subject.

If we are to take the allegations of the bill as evidence of the law, and of which, certainly, the complainant has no right to complain, there it conclusively appears that the title of the wife to the slaves did not vest in the husband at any time during coverture, for if so, they could' not on her death have descended, as expressly charged in the’ bill, to her child, who took not the title of the surviving husband and father, but only the title of the deceased wife and mother.

We are to understand from this allegation, that all the interest which the wife ever had under the deed, on her death went under the law to her child. This, of itself, contains a complete negative on the right now asserted, that the title during coverture vested in the husband. Even if proof of such title could be admitted under the bill, there being no proof of those facts necessary to consummate the husband’s title, we are of opinion that there is no error in the decree of the vice-chancellor dismissing the bill.

On this last branch of the case it is only necessary to refer to the decision of this court in the case of Clark v. McCreary, 12 S. & M. 352, to’ascertain the rule of law which must control our decision. The facts fail to bring the case within the operation of this rule. Decree affirmed.