
    Lucinda S. Dease v. Elijah G. Cooper. et al.
    
    1. Probate court: exclusive jurisdiction in allotment and apportionment OP TEARS SUPPORT FOR WIDOW AND CHILDREN OP DECEDENT. — The Probate Court has exclusive jurisdiction of the allotment of a year’s support for the widow and children of a decedent, and may make such an apportionment of it as under the circumstances may be just and equitable.
    2. Annual allowance por support op widow and children : parties interested IN, MUST PRESENT THEIR CLAIMS BEFORE CONFIRMATION OP REPORT OP APPRAISERS. — Parties claiming- an interest in the annual allowance made by the Probate Court for the support of the widow and children of a decedent must present their claims before the report of the appraisers, appointed to. set aside the allowance, has been confirmed by the court; otherwise they will be deemed to have waived their rights in favor of other beneficiaries whose claims are presented.
    3. Chancery court : jurisdiction over apportionment op annual allowance OP widow and children. — The Chancery Court has no jurisdiction to make a pro reda distribution of the annual allowance given by the statute for the support of the widow and children of a decedent.
    Appeal from the Chancery Court of Jasper county. Hon. John Watts, judge.
    
      J. J. Shannon, for appellants.
    
      ~We think the Probate Court was the proper court to decide who were entitled to the year’s provision and the exempt property. By article 1Y2, Rev. Code, page 469, the widow was allowed to retain all her husband’s personal property and the property exempt from execution, and the appraisers were required to set apart one year’s provision for the widow and children, or in lieu thereof, an allowance of money. By the amendment act, pa/m/phlet acts of 1860, page 3Y5, the personal estate exempt from execution shall be retained by the widow and children, and if there be no widow, it shall descend to the children, and the commissioners for this purpose shall report to the court, and this report shall either 'be approved or referred back to the appraisers, with instructions what to allow, etc. The Probate Court was the place to have'objected to the improper action of the commissioners, and to have newly instructed the appraisers as to who were entitled to receive the property. But, on the merits, we think the bill should have been dismissed. The complainants being legatees of Edward Dease, and none of the property in dispute being bequeathed to them, their rights must be determined by the will; for the will, being vacated as to appellant, cannot benefit them. It does not appear that complainants were members of the family of deceased at his death, and the widow and the children Uvimg with her hold the property. This is the very meaning of the statute. She, as head of the family, holds the property for the benefit of herself and those of the children living with her. Any other construction would defeat the object of the legislature. Complainants surely cannot wish a division of the property. This, in many instances, would deprive the widow of any benefit from it. It might as well be distributed like the other property of the estate.
    
      Chapmcim and Jennings for appellees.
    The Chancery Court has alone jurisdiction of the subject-matter in dispute. The intent of the statute is clearly to keep the property out of the ordinary course of administration, as it provides that the widow and children are to “ retain and hold,” not that “ it shall descend to them,” as under the statutes of 1839 and 1852. Tbe Probate Court bas only to regulate tbe allowance to tbe widow and children, and see that tbe proper allowance is made, and approve or disapprove tbe report of tbe appraisers, etc., and there its jurisdiction ends. To bold that tbe benefits of this act applies only to tbe widow and those of tbe children living with her, would often exclude a majority of tbe children, who might not be living with her at tbe time, which would be defeating tbe spirit and letter of tbe law. Tbe legislature, seeing tbe unfairness of giving coll tbe exempt property to tbe widow, in many instances a stepmother, and they being otherwise dependent on her bounty, determined to give tbe children a fixed interest in the exempt property, and tbe law clearly means that they are in no event to be deprived of that interest. There being a will does not alter tbe case. Tbe law applies, and tbe exempt property goes, to widows and children of decedents, both testate and intestate, without regard to tbe will. In Turner et al. v. Turner, 30 Miss. R., page 428, it was held that under tbe acts of 1839,1846, and 1852, tbe widow took by descent or (distribution; tbe husband’s right to dispose of it by will, not being interfered with. Under tbe statute of 1860, however, there is no descent, no distribution; tbe disposition by will is destroyed, and tbe widow and children take an absolute estate. If this be not tbe meaning, why did tbe legislature change tbe former law % As to tbe relief prayed for, i. e. by a fro raía division, it is tbe only way in which an interest can be obtained. Tbe only benefit to be derived from the greater portion of tbe property is by consumption. Tbe decree should be confirmed.
   Harris, J.,

delivered tbe opinion of tbe Court.

Tbe defendants in error filed their bill in tbe Chancery Court of Jasper county, as tbe children and heirs-at-law of Edward Dease, deceased (who died on tbe 30th June, 1860), against tbe plaintiff in error, Lucinda S. Dease, the widow of said decedent, to recover a pro rata share of tbe property exempt from execution, as well as a year’s provision allowed by law, which was set aside by tbe appraisers appointed by tbe Probate Court of said county, and by them left in tbe possession of said widow. The bill shows that two of the complainants are married women, and the other four are minors, and none of them residing with the widow. The bill further shows, that the widow and plaintiff in error has four minor children of her own, by decedent, residing with her; that she holds and claims the exempt property and allowance made for a year’s provision, for herself and her four minor children, and refuses to deliver a pro rata share thereof to these complainants.

The bill further shows that the decedent was possessed of a large real and personal estate at his death; and by agreement of counsel it is admitted that the widow renounced her interest under the will of decedent, which was duly probated as stated in the bill.

The prayer of the bill is for a decree that the said widow pay to complainants their pro rata interest in said property so set aside, as well as their share of the hire of a negro woman set aside by said appraisers and left in the possession of the widow. It further prays the appointment of a commissioner to take an account, etc., for such further and other relief, etc.

Process of subpoena is prayed against the widow. It is issued against the widow and her children, and executed on the widow, for herself and as guardian of her children, which the bill alleges her to be.

To this bill there was a demurrer filed, assigning two causes: first, that the Probate Court had jurisdiction of the matters complained of; and second, that the bill shows that the property is in the possession of the parties legally entitled to it. The demurrer was overruled, and the cause brought here by appeal.

In the case of Womack v. Boyd, 31 Miss. R., page 443, in construing some of the provisions' of the act of October, 1852 (very similar to the act of 1860, under which these parties claim), we have held that this statute, making an allowance of a year’s provision for the support of the widow and children of a decedent, does not provide in what proportions the same shall be divided amongst them, in case a division should be necessary; in such case it would be the duty of the Probate Comt to make such an apportionment as, under the circumstances, would be just and equitable, taking into consideration tbe sum necessary for tire support of eacli; and this may be done by tire court directly, or through the agency of the commissioner appointed to set apart this year’s allowance. "What is here said of the act of 1852 is applicable to the act of 1860. It follows from this view, that the Probate Court is the proper tribunal to ascertain and apportion to the widow and children, in cases like the present, according to their condition and necessities, the whole fund so designed for the support and maintenance of the families of decedents. Any other rule would utterly defeat and destroy the beneficent policy which the legislature had in view, in the passage and amendment of the several acts which are to be found on our statute books. The Probate Court, while exercising jurisdiction over the subject, should fully settle and adjudicate the rights of all the parties in interest; keeping in view, first, the support of the widow and all the children of the decedent; and, second, so apportioning the property as to meet the necessities of the widow and children respectively, as they may need its “ use.” Their jurisdiction in this respect is exclusive; and all parties claiming rights in such apportionment, must be held to the presentation of their claims before the report of the appraisers shall have been confirmed by the Probate Court, under the provisions of this act, or else be deemed to have waived them in favor of- the other beneficiaries, whose claims are so presented.

To allow the Court of Chancery, or any other court, to assume jurisdiction over the subject, for the purpose of making a pro rata distribution of the fund to each of those interested, would not only oust the Probate Court of its rightful jurisdiction, but would invite a course of litigation as disastrous to the widow and children as it would be destructive of the end and object of the law.

On this ground the demurrer to this bill should have been sustained, and the bill dismissed.

Let a decree be entered in this court dismissing complainants’ bill, at their cost.  