Jiggitts v. Bennett

31 Miss. 610

• Court: Mississippi Supreme Court
• Decided: October 15, 1856
• Status: Published

Opinions

Handy, J.,

delivered tbe opinion of tbe court.'

This was a petition by tbe defendant in error — who was tbe widow of Russell M£Cord Williamson, deceased — to the Probate Court of Madison county, for an allotment of her dower in the lands of the deceased.

The petition states that the husband died intestate, and during the marriage was seised and possessed of certain specified lands, which were sold to divers persons at sheriff’s sale, under executions against him in his life time, in which lands she has not relinquished her right of dower; that there is no administration upon the estate of the husband, and that the plaintiff in error is in possession of, and claiming title to these lands, and praying a citation to him to answer the petition, and show cause why the petition should not be granted.

The plaintiff in error appeared, and by way of defence to the petition, offered in'evidence several deeds, showing sales of the lands at execution sales, as the property of Williamson; and other deeds under which he derived title. This evidence was all rejected, and the court proceeded to award dower in the lands to the petitioner, commanding the sheriff to summon commissioners to allot and assign the dower, and to put the widow in possession of the lands so assigned.

The only question which we consider it necessary to decide in this case, is, whether it was competent for the Probate Court to cause the dower to be allotted and assigned so as to affect the rights of the plaintiff in error, and to turn him out of possession. And this question has been settled by this court. James v. Rowan, 6 S. & M. 393; Pickens v. Wilson, 13 Ib. 691. The statute regulating the exercise of the power conferred upon the Probate Court by the constitution, for the allotment of dower, has no reference to the rights of strangers, claiming adversely to the deceased. No provision is made for notice to such persons, and it is manifest that such questions are wholly foreign to the jurisdiction of that court, and are such from their nature, involving as they do matters both of law and fact, as that court, from its constitution, would be incompetent properly to adjudicate. If the statute had contemplated such an extent of jurisdiction, it would be plainly unwarranted by the provision of the constitution. That provision gives to the Probate Court jurisdiction in “all matters of the allotment of dower,” art. 4 § 18. The term “ allotment” applies to parties who claim in virtue of the title of the deceased, as the widow and heirs, and over whom the Probate Court may have jurisdiction. It signifies an apportionment of the interest of one or more parties entitled to a share of the estate; and before the power can be exercised so as to affect the rights of strangers, it must be shown that the court has jurisdiction to adjudicate upon their rights. And we think it manifest, that this provision of the constitution no more confers jurisdiction on the rights of strangers claiming title to lands adversely to the deceased and his representatives, than the same section of the constitution, giving jurisdiction to the court in “ all matters of administration,” confers the power to adjudicate upon the titles of strangers who may claim the personalty in opposition to the claim of the administrator.

So far as strangers are concerned then, the allotment in the Probate Court could have no further effect than to ascertain the part of the lands to which the widow would be entitled, and to enable her to sue for those particular lands, and upon showing that the party in possession, and claiming adversely, was not entitled to hold the lands against her claim to recover the possession. The allotment would amount to but little, if anything, more as to the rights of a stranger in possession, than a preliminary step to show what part of the husband’s lands she would be entitled to upon showing her right of dower therein superior to the adverse claim of the stranger. But the decree of the Probate Court cannot in any manner affect his rights or preclude his defence, when properly called upon to establish his title.

The decree of the Probate Court, so far as it orders possession of the lands allotted as the widow’s dower, to be delivered to her, is erroneous, and in that respect it is reversed.

Smith, C. J., concurred.