26 Miss. 579 (Miss. 1853), Rabb v. Griffin

Citation:26 Miss. 579
Opinion Judge:Mr. Justice HANDY.
Party Name:GABRIEL RABB v. MARGARET GRIFFIN et al
Attorney:R. North, for appellant. No counsel for appellees.
Court:Supreme Court of Mississippi
 
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Page 579

26 Miss. 579 (Miss. 1853)

GABRIEL RABB

v.

MARGARET GRIFFIN et al

Supreme Court of Mississippi

December, 1853

In error from the southern district chancery court; Hon. James M. Smiley, vice- chancellor.

The facts of the case are sufficiently set forth in the opinion of the court.

Decree reversed and cause remanded.

R. North, for appellant.

One twelfth part of the slaves and one eleventh part of the land (subject to dower) descended to Eliza on the death of her father; and complainant, then a tenant by courtesy, became entitled to an estate for his own life in the eleventh part of the land; and on the death of his wife Eliza, her thirteenth part of the slaves vested in complainant by the "married woman's" law of 1846, the child of said Eliza being then dead.

In Carmichael v. Browder, 3 How. 255, it was held "that whatever is a matter testamentary, or of administration, falls under the cognizance of the court of probate." "We do not mean to decide, however," proceeds the court, "that there are not causes arising in the course of administration which may be proper for the interposition of a court of equity. The same rule which is applicable to other courts of law will, no doubt, apply to this. If it (the probate court) be wholly incompetent to give relief, and the party has not by his own laches lost his remedy, then it might be a proper case for equity jurisdiction."

The case of McRea, 4 How. 458, was a suit in chancery for one of two slaves by a distributee of an estate where there was no administrator. The court says that "the bill alleges that no administration has been had on the estate of Christiana McRea, or that of complainant's mother. This statement is decisive of the question. Upon which one of the parties can the probate court act?"

In Faroe v. Graves, 4 S. & M. 711, this court held, "that it held, in administration cases where the court of chancery had jurisdiction previous to our amended constitution, it still retained it; and that distributees are not bound to take out letters."

Potter, on the same side, cited Varick v. Smith, 5 Paige, 137.

No counsel for appellees.

OPINION

Page 581

Mr. Justice HANDY.

The plaintiff in error filed his bill in the southern district chancery court for a partition of the personal and real estate of Isham Griffin, deceased, alleging that the...

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