
    Hamden Bradley, Administrator of Thomas Bradley, deceased, vs. Edwin Byrd and William L. Huff, Administrators of Salina Byrd, deceased.
    Where commissioners are appointed by the probate court, to malte a division of slaves, for the purposes of distribution among the distributees of an estate, the slaves remain in the legal custody of the administrator; the commissioners do not become vested with any title whatsoever, in the property to be divided, either before or after the division, and are not entitled to its possession ; the extent of their power is to ascertain and report the shares, and when that is done, their duties and powers cease ; and it is the duty of the administrator to make the distribution or delivery of the shares to their legal recipients.
    Where a distributee, after a division into shares by commissioners, filed his bill in the probate court, for his distributive share, and the administrator resisted the petition, solely on the ground, that, by law, the commissioners who allotted the shares, alone had possession of the property, and from thenceforth the liability of the administrator ceased; it was held not to be competent on the hearing of the petition, for the administrator to attempt to show a delivery by him to the distributee of his share.
    On appeal from the probate court, of Amite county; Hon. J. F. Lowry, judge.
    Edwin Byrd and William L. Huff, administrators of Salina Byrd, deceased, filed their petition for the distributive share of their intestate in the estate of Thomas Bradley, deceased. Hamden Bradley, the administrator of Thomas Bradley, in his answers, admits that the petitioners are the administrators of Salina; that he is administrator of Thomas Bradley, and Salina was one of the distributees of said Thomas, but denies that he has in his possession, as administrator, the slaves mentioned in the petition, or that as such administrator he has had any control whatever since the division of the slaves belonging to the estate of Thomas Bradley. He states that the probate court of Amite county ordered a division of the slaves of said Thomas, and appointed commissioners for that purpose, and that the commissioners so appointed did make a division of the personal estate, .and set apart to Salina the slaves mentioned in the petition; that Salina, at the time of the division, was present, and fully competent to act for herself so far as her legal right to do so was concerned. And that the report of the commissioners was confirmed by the probate court of Amite county. This report shows a division of the estate into three parts; one of which, the slaves claimed in the petition, was allotted to Salina Byrd. The petitioners introduced two witnesses who had acted as commissioners to divide the property, who testified that on the‘day of the division, Salina was present, and by one of the commissioners was informed that the slaves now in controversy were her portion; that the slaves were left on the plantation where the division occurred; and on the day of the division, Hamden Bradley, as administrator, hired to one of the commissioners one of the slaves that was set aside to Salina, and had admitted in conversation since the division, that he had in his possession the slaves of Salina, as administrator, stating that he was attending to Salina’s business for her as guardian.
    The defendant below proved that on the day of the division of the property, all of the distributees were present, and after the division the commissioners informed each of the distributees what portion was allotted to each, when two of the distributees took their portions, and Salina’s was left on the plantation where the division took place, she not being a housekeeper, and also -being very infirm; Salina, with the consent of Hamden Bradley, gave one of the witnesses the use of one of her slaves set aside to her by,the commissioners, for her board and clothes; that Hamden Bradley was her only brother, and acted for her as her agent and friend, and had admitted to one of the witnesses that he held the property as administrator of Thomas Bradley since the death of Salina; that Hamden Bradley transacted the business of Salina in reference to tíre slaves set apart to her, acted as the adviser of Salina, and did not exercise control over the property as administrator. The court ordered the defendant below to deliver the property to petitioners; a bill of exceptions was signed, and an appeal granted.
    
      D. W. Hurst,'for appellant.
    
      William and William G. Thompson, for appellees.
   Mr. Justice ThacheR

delivered the opinion of the court.

Salina Byrd’s administrators filed their petition in the probate court of Amite county, for the distributive share of their intestate in the estate of Thomas Bradley. The administrator of Thomas Bradley objected to the prayer of the petition, sotting up that he had not had possession of the slaves set apart to Salina Byrd, in his capacity as administrator, since the appointment of commissioners for the division of the estate, and their action thereon.

It is contended, by the administrator of Bradley, that upon the appointment of such commissioners, they are authorized and do take the legal possession of the property to be divided, and that from thenceforth the liability of an administrator therefor ceases.

This estimate of the power and duties of such commissioners is, we think, erroneous, The law makes it the duty of the administrator to make distribution upon a proper application, ■and upon an order of the court. The commissioners but ascertain the share to be distributed by the administrator to the several persons entitled to receive it. They do not become vested with any title whatsoever in the property to be divided, either before or after the division. They have a right to'require from the administrator a full opportunity to view and inspect the property, in order to ascertain the shares, but they are not entitled to its possession. After they have ascertained the shares and returned their report thereof to the probate court, their duties'and powers cease. It is the duty of the administrator to make the distribution or delivery of the shares to their legal recipients.

Besides the foregoing, which was the sole objection raised by the administrator of Bradley to the petition in his answer thereto, it was attempted to ■ be shown by the testimony in the case, that Salina Byrd, in her lifetime, obtained possession of her share of the property. It seems there were three distribu-tees, and that the share of Salina Byrd consisted of three slaves. Immediately after the division, two of the distributees took possession of their shares, but Salina Byrd did not take possession of her share, and it was permitted or did remain on the plantation where the division took place. Subsequently, and on the day of the division, one of the slaves included in the share of Salina Byrd, was allowed,- by permission of the administrator, to go into the hands of one of the commissioners for the consideration of the board and clothing of said Salina. There was an attempt by the administrator, Hamden Bradley, to show that he acted as the agent and friend of Salina in the charge and custody of her share of the slaves; but one of his own witnesses proved that he had admitted t,o him, the witness, that he had possession of her share of the slaves in his capacity as administrator, since the death of Salina Byrd. The whole of the evidence in regard to this position must be regarded as irrelevant to the cause, not being responsive to any matter raised by the answer to the petition. It was clearly not legitimate to the defence, which was put exclusively upon the ground that the property had passed out of the control of the administrator into the hands of the commissioners. Still, whether upon the real legal ground assumed in the' answer, or the matter of .fact raised by the evidence, the -case is manifestly for the administrators of Salina Byrd. The whole record shows that Salina Byrd did not receive from the administrator her distributive share of the estate, and so the probate court considered.

The decree is affirmed.  