
    Joseph Ratcliff, Administrator of Agga Ratcliff, vs. James S. Ratcliff.
    The probate court, by consent of^parties, may try an issue made up between the distributee of an estate and the administrator, as to whether the administrator has neglected to insert in his inventory'any property of the estate, and has failed to give in any claims against himself; or the court may refer the issue; or send it for trial to the circuit court; and if the probate court, when such an issue is made up, proceeds to hear the evidence of the parties, and their arguments, although the consent of the parties thereto does not expressly appear of record, it will be presumed therefrom.
    Upon the death of one who has a life estate in a slave, the title to the slave vests in the person >who has the remainder, and the slave does not constitute assets of the estate of such owner of the life estate.
    The copy of a will executed in South Carolina, is not evidence in a controversy between the distributees of an estate, and the administrator in the probate courts of this state, unless it be either probated in the proper court of this state, or be certified according to the act of Congress, of May, 26, 1790, prescribing the mode of authenticating the public acts, records and judicial proceedings of the several states.
    It seems, that where, in a controversy in the probate court, between the distributees and administrator of an estate, as to whether a slave claimed by the administrator, to belong to his children by virtue of a deed of gift from the intestate, is part of the assets of the estate, wherein the evidence is varied and conflicting, it is a case peculiarly adapted for the examination and finding of a jury ; and when the probate court has tried such a case and its decree been reversed, either party, upon a rehearing, may claim a trial by jury.
    On appeal from the probate court of Lawrence county; Hon. Matthew B. Cannon, judge.
    On the 3d of September, 1844, James S. Ratcliff filed his petition against Joseph Ratcliff, administrator of Agga Ratcliff, deceased, alleging that petitioner was a distributee of the estate, and the administrator had omitted to report to the probate court certain enumerated items of assets of her estate, and certain enumerated claims against himself. At the September term, 1844, the administrator answered in substance, denying the allegations of the petition. At the February term, 1845, leave was given the petitioner to amend his petition; and by consent of counsel, the deposition of William Ratcliff, a brother of both plaintiff and defendant, was taken.
    At the May term, 1845, the amended petition was filed, charging more specifically the alleged omissions to inventory assets of the estate/, the principal item of which was the sum of about $639-16; being the amount of a judgment recovered in the court of common pleas of Orangeburg district of South Carolina, by Agga Ratcliff, against the petitioner, and which the petitioner paid in full to the administrator on the 15th of August, 1836.
    The administrator admitted in his answer the reception of the money, but stated that the judgment on which this money was paid, had been rendered in a suit for the recovery of a negro man named Smart, whom the petitioner had in possession, but to whom Agga Ratcliff was entitled during'her life ; and that, previous to the commencement of the suit in South Carolina for the negro, Agga Ratcliff, in consideration of her love and affection to her grandchildren, (the children of the administrator,) had given the negro to them; and as their agent, and in trust for them, he had received the price of the negro from the sheriff, in lieu of the slave. He exhibited the deed of gift with his answer, which was dated the 12th of March, 1828, and purported formally to convey Smart and other negroes to the children, by name, of Joseph Ratcliff, reserving, however, to the donor the use and benefit, during her natural life, of the slaves thus conveyed.. The deed of gift was acknowledged on the day of its date in South Carolina.
    The deposition of William Ratcliff was taken, and at the June term, 1845, the cause was tried in the probate court, when various witnesses on both sides were orally examiued, and their testimony reduced to writing. It is not deemed necessary to set out the facts proved.
    
      After the examination of witnesses was closed, the record states the petitioner then introduced in evidence the will of William Ratcliff, deceased, and read as follows: [Here follows the will, dated the 17th of January, 1795, witnessed by three witnesses, and probated by one of the witnesses in South Carolina on the 10th of October, 1795, before L. Lestagette, ordinary. By this will the testator left one third of his negroes to Agga Ratcliff, his widow, for her life, with remainder to his children, of whom the petitioner and defendant were two; the other provisions of the will need not be stated.]
    The record then proceeds: “ State of Mississippi, Lawrence county. At a probate court for said county, held at the courthouse thereof on the fourth Monday of June, A. D. 1845, this day, came the parties, (James S. Ratcliff against Joseph Ratcliff,) by their attorneys, and introduced testimony for and against the petition of said complainant; and upon a full hearing and argument thereon, it is adjudged, decreed, and declared by the court here that the following fact was proved : that the said defendant received for the said Agga Ratcliff, deceased, the sum of six hundred and ten dollars, which he never paid over to her, and which was due to her at the time of her death by him, and that the said sum of money ought to be returned by him as a debt due said estate; it is, therefore, ordered,” &c., according to the opinion.
    Next follows in the record a bill of exceptions, filed by the defendant to the refusal of the court to permit him to read the bill and proceedings thereon of James S. Ratcliff, the petitioner, against Agga Ratcliff in the chancery court of Orangeburg district, in South Carolina. The bill and answer, and the decree of the chancery court dismissing the bill, are all spread out in the bill of exceptions. The chancery suit related to the slave Smart in part.
    No other exceptions were taken, so far as appears of record; nor was any other bill of exceptions sealed ; the testimony was all copied in the record, by whose order is not stated.
    The administrator appealed from the decree.
    
      
      J. F. Foute, for appellant.
    The decree should be reversed.
    1. Because it is against the evidence in the case, and against law.
    
      2. Because the court assumed the power to determine the facts on the testimony, “ without the consent of the parties; ” and did not order an issue to be tried by the circuit court, or refer the matter, according to directions of the statute. See How. & Hutch. 404, sec. 67, 68; and Kelsey v. Smith, 1 How. (Mis.) Rep. 80, 81, 82, &c., and cases cited.
    3. Because the court determined the fact against evidence, and in violation of the rights of other parties, not before the court, and who had the principal and chief interest in the subject matter, as appears from the record.
    4. Because if Joseph Ratcliff had failed to return in his inventory, debts actually due by him to the estate of Agga Ratcliff, he could not be proceeded against in this mode, but must be sued on his bond, &c. Kelsey v. 'Smith, 1 How. (Mis.) Rep. 68 ; 2 lb. 617, 813.
    5. Appellant, Joseph Ratcliff, denies in his answer to the petition, that the negro man, Smart, or the value of him, was the property of his intestate, Agga; and proves that denial true by' the deed of gift, made part of that answer. No presumption of assets is allowed. 2 How. 617.
    6. The answer shows, that Agga Ratcliff had only a life estate reserved to herself in the slaves named in the deed, and that she herself was only a trustee during her life, of the particular estate for the benefit of the donees in said deed of gift. 2 Lomax on Ex’rs. 233, sec. 15.
    7. Agga Ratcliff, by the deed, on 12th of March, 1828, more than twelve years before her death, had created Joseph Ratcliff, the trustee, to hold and accept the title to the slaves therein named, and, of course, at her death, to retain or take possession of them as circumstances should require, for the benefit of his children, the beneficiaries under that deed.
    8. The petitioner, James S. Ratcliff, cannot claim against the solemn deed of his mother, who had long before her death by that deed disposed of the slaves therein named; the slave, Smart, being one of them, of course the value of Smart recovered at law, against James S. Ratcliff, petitioner, in South Carolina, for his unlawful and improper conversion or detainer of Smart, must go according td the disposition made by Agga Ratcliff, of the slave himself.
    9. The will of William Ratcliff, which was introduced as evidence by petitioner, James S. Ratcliff, in the probate court, was not admissible as evidence, because not proved or recorded in any court or office within the state of Mississippi, as required by law. And because the record does not show whether it was the original will, or a copy that was so offered and read in evidence; and whether it was the original, or a copy, was not proved, so as to make it admissible as evidence; or the proof thereof, if any was made, in Orangeburg district, South Carolina, was not certified or authenticated according to law, to authorize its admission as evidence in any courts in the state of Mississippi. How. & Hutch. 388, sec. 13, 14; 5 S. & M. 151.
    10. But if the will of William Ratcliff had been properly proved or authenticated, so as to have been made admissible evidence, it proves nothing, and does not tend to prove any fact in issue; it does not show that negro Smart, or any other named or designated slave, was devised by testator to Agga Ratcliff, for life or otherwise, and there is no proof that Smart or any other specific slave constituted part of the estate of testator, William Ratcliff; nor does it prove that Agga, by devise or otherwise, ever received the slave, Smart, from the estate of her husband, or, that she did not obtain the slave, Smart, by other title, and after the death of her husband; nor is there any other proof offered by petitioner to show that Smart ever was the property or constituted any part of the estate of his father, William Rat-cliff.
    11. To make good assets in the hands of the executor, the absolute property must have been vested in the testator. 2 Lo-max, Ex’rs. 233, sec. 15, citing Deering v. Torrington, 1 Salk. 79.
    
      12. The answer of Joseph Ratcliff shows clearly that Agga Ratcliff had no absolute property in the slave, Smart, since 12th of March, 1828, and that Joseph Ratcliff never held the money recovered from petitioner, James S. Ratcliff, as executor, but as a trustee. And there is .no proof that Aggy Ratcliff, during her life, after the receipt of said judgment by Joseph Ratcliff, ever claimed or demanded it as belonging to her; she acquiesced for many years in its retention by Joseph, as trustee.
    13. The probate court should have heard and allowed as evidence the copy of the record of the suit in the chancery court for Orangeburg district, in South Carolina, brought by the same James S. -Ratcliff against Agga Ratcliff in October, 1828, and set out in the bill of exceptions in this record; by which it is shown that the rights of petitioners, now sought to be asserted in this proceeding, were, in that suit, settled and adjudged against him by the chancery court of South Carolina, more than seventeen years ago, and we insist is a bar to petitioner, and concludes him as to the same subject matter.
    14. The right of trial by jury, on an issue, which should have been ordered by the probate court in this case, has been violated, and appellant has been deprived of a full and legal hearing of his defence, by an assumption of power by the court below, both oppressive and dangerous, and by the most erroneous exercise of that power, against the weight of the evidence in therecord, determined on facts without authority.
    
      TV. A. Stone, for appellee.
   Mr. Justice Thachek

delivered the opinion of the court.

This is an appeal from the decree of the probate court of Lawrence county, in the matter of a petition by a distributee of an estate, which charged the administrator with neglecting to insert in his inventory of the estate certain property appertaining thereto, and certain claims against himself.

The mode of proceeding in such cases is regulated by laws H. & H. 404, sec. 67, 68. It is here provided, that any person interested in an administration may proceed by petition in the probate court; and the court, by consent of parties, may decide upon the same, or it may be referred or determined, by an issue to be tried in the circuit court. These modes of proceeding establish the fact, whether or not the administrator should give in the claim or claims against himself, and if he fail to account therefor as money, his bond may be put in suit. Kelsey v. Smith, 1 How. 68.

In this cause it does not expressly appear, that the probate court of Lawrence county was called upon by the consent of parties to decide upon the merits of the petition; but as the parties proceeded before that tribunal to introduce their evidence and discuss the cause, such consent may be presumed.

The chief object in controversy related to a slave called Smart, or his value, which is alleged to have been received by the ad-' ministrator prior to his administration, and before the decease of his intestate. On the part of the distributee petitioning, this slave was alleged to be the issue of a slave, in whom the intestate had but a life estate; and upon the part of the administrator the slave was alleged to be the property of his children, by virtue of a deed of gift from the intestate, their grandmother. The matter was resolved into a dispute for the value of the slave, since, by the result of legal proceedings in South Carolina, between the intestate in her lifetime and others, the property had been reduced to money. If the intestate had but a life estate in the slave, as a matter of course, it could not be deemed assets of her estate at her decease, but vested in the residuary legatees. If she had a title in fee to the property, her deed of gift to her grandchildren was valid, and the property was in that event not a proper credit to her estate. The preponderance of the evidence, in our estimation, would carry the case in favor of the administrator, as presented by this record, and not for the distributee. Moreover, upon the hearing, the distributee was permitted to read a copy of the will of William Ratcliff, under which the title of the intestate to the slave was claimed, when this will did not appear to have been probated in the proper court of this state, or certified according to the act of Congress of May 26, 1790, prescribing the mode in which the public acts, records and judicial proceedings in each state shall be authenticated, so as to take effect in every state. H. & H. 388, sec. 13; Melvin v. Lyons 10 S. & M. 78.

Upon a view of the whole case, we think the decree of the probate court was erroneous at least, for the reason that it was made upon evidence improperly before it, and we think also, that it is a state of case peculiarly adapted for the examination and finding of a jury, which, under the statute, may be had at the instance of either party upon a rehearing. 5 S. & M. 409.

The decree is therefore reversed, and the cause remanded.  