John C. Calhoun et al. v. Christiana M. Rail et al., 26 Miss. 414

Mr. Justice Handy 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 there is nothing requiring the division of both to be made or reported at the same time.

The division of one of the species of property can have no effect upon the division of the other, and no other object seems to have been in_ contemplation by the second statute, than to save expense by having the whole property divided by the same set of commissioners. But where the commissioners have made division of the personal property, omitting the lands, that of itself is no ground for setting aside their report. If regular in other respects, it is good pro tanto; otherwise, the useless expense would be incurred of having a new division made when that already made was of itself just and unobjectionable.

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 afterwards.

This would be true, if the mere act ascertaining “the shares of the respective parties, even accompanied by delivery of possession to them, conferred a title. But such is not the case. The law requires not only that the partition shall be made and reported to the court, but before it takes •effect and confers title on the parties, it must be approved and confirmed by the court. It is true that the division, when confirmed without objection, has relation back to the time it was made.

But here, exceptions upon the ground under consideration were taken before the confirmation, and no title to the slave having then been perfected by the division, and the loss having.occurred without any fault of the party to whom the slave was allotted, it was proper to consider whether, under this altered state of the property, the division should stand. The matter is not affected by the mere- fact that the slave was delivered to the party by the commissioners. No such right existed in the commissioners.

The property was in law in charge of the executors of the deceased until the division was consummated by the confirmation of the report, and then only did the parties become invested with complete ownership. 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 otherwise an equal division was impracticable.

This power in such matters was possessed by the chancery court; and it would seem that the legislature, in conferring upon the probate court jurisdiction over the subject, must have conferred this incidental power, without which the general jurisdiction would, in most cases, be impracticable. It is no objection to the exercise of this power, that the probate court could not render a decree against the party for the money.

The court has control of the property, and can order it to be delivered over upon terms; and in such cases, it would possess the same power to award the payment of money when absolutely necessary to the division, that it would have to award the payment of the costs of division by the parties. In each case it would be a charge upon the property unless otherwise paid. 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.