
    Bernard Benoit, Jr. vs. John Brill.
    Any one of several distributees of an estate may, at the expiration of the time restricted by the statute, apply by petition to the probate court for his distributive share without joining his co-distributees; and the probate court will compel the distribution on the petitioner’s entering into the bond with the surety required.
    Where a free man of color applied by petition in the probate court to have distribution of his father’s estate ; alleging in the petition that he was the natural son of his father, and that the legislature of the state, had granted him all the right, title and interest which it had by the law of escheat in his father’s estate; and had by act confirmed his manumission; and the administrator answered, denying the freedom of the petitioner, asserting that he was the property of the estate, and that there were other persons claiming to be heirs of the deceased; but the administrator offered no proof of the slavery of the petitioner; held, that the petitioner made out a prima facie case of a right to distribution, and that the petition should be allowed by the probate court, unless the administrator should require an issue to the circuit court to ascertain the alleged freedom of the petitioner.
    On appeal from the probate court of Harrison county; Hon. George Holly, judge.
    Bernard Benoit, jr., averring himself to be a free man of color, filed his petition in the probate court of Harrison county, in July, 1844, setting forth that Bernard Benoit, sen., who was a free man of color, died intestate, in said county, sometime in December, 1841, and without legal heirs. That at his death he was possessed of a considerable estate, consisting of negroes and other personal property. That petitioner is the natural son of said decedent, and that in February, 1844, the legislature passed an act for his relief, by which the state relinquished to petitioner “ all claim to said estate, by escheat and provided that “ said estate should vest in petitioner in the same manner as though he had inherited the same, or as though it had been bequeathed to him by will.” That one John Brill, was appointed administrator of said estate, and took possession of it as such. That twelve months have elapsed since the granting of the letters ; that the debts are small; and prays for distribution, and tenders a refunding bond.
    The administrator answered and admitted most of the facts stated in the petition, but denied that the petitioner is a free man, and alleges that he is a slave, and belongs to the estate. The answer also alleges that one Zistine Joseph, claims the estate as heir, and that proceedings are now pending to establish his right; it sets up also, as a defence, that until the right of the state of Mississippi, by escheat, had been ascertained, the petitioner had no claim, inasmuch as he could claim only the right which the state might have had by escheat.
    The petitioner on the hearing, read an instrument in the French language, of which the following-is a translation :
    “ On this day, the 24th of August, 1808, the widow of Antoine Bayard and Master Bernard Benoit, here appeared in my office of syndic and notary, attended by two'witnesses, whose names are signed hereto, Messrs. Esprit Mathew Guglat and Valentine Frederique, witnesses of said woman, Antoine Bayard, who sells to said Master Bernard Benoit, a young mulatto, aged fourteen years, whom the said Bernard Benoit claims as his son, for the sum of 400 piasters, cash received. The said woman, Antoine Bayard, sells the said mulatto to the said Bernard Benoit, on the condition that on the moment of the sale, he shall acknowledge him free.” This instrument was duly signed by the parties.
    The instrument of manumission by Bernard Benoit, sen., signed by two witnesses, provided in substance, that from that moment he acknowledges the freedom of his son, according to the conditions of his purchase. The petitioner then produced the certificate of registry of the petitioner, as a free mulatto, in the probate court of Hancock county, and proved that he was recognized by the said Benoit, sen., as free, and that the administrator had not attempted to restrain his liberty, nor had him in possession.
    The court dismissed the petition, on the ground that the rights of the state had not been ascertained, and the petitioner appealed.
    
      W. P. Harris, for appellant.
    1. The first question to be noticed is that which is likely to arise in regard to jurisdiction of the probate court to determine the fact as to whether the petitioner below was a free man of color. In the form in which this question arose in the court below I think ifwas competent for that court to determine it.
    The probate court is the proper place to seek distribution of the estate of an intestate; and it matters not whether the right to distribution is derived from birth, or from an act of the legislature ; a party asserting such right must apply to this tribunal; on every such application, the probate court is called on to determine whether the petitioner is entitled to distribution, or in other words, whether the petitioner is the person he represents himself to be. In the present case,, the petitioner represents that he is a free man of color, the natural son of the deceased, who died intestate and without heirs; that the legislature, by an act passed for his relief, conferred upon him the capacity to take the estate of his natural father, as an heir, and asks that it be decreed to him. The question arising on this state of facts is that which would arise on the application of an heir constituted in any other manner, and is simply whether the petitioner sustains the character he assumes. And the administrator could as well defeat the jurisdiction of the court on the application of any other heir, by simply asserting that he is a slave, as in the present instance. The question of freedom is an ingredient of, and incidental to the main question, determined on every application for distribution, and that is, “Isihe person applying, an heir?”
    There is nothing in the record to show that the petitioner below was a slave, except the simple assertion of the administrator in his answer; on the contrary it is abundantly proved that the petitioner was a free man of color. This point seems to have been yielded in the court below, and the decision of that court seems to have been based upon the position that the rights of the state to the escheat should be first ascertained by a regular proceeding for that purpose, before the petitioner could assert his right to distribution.
    Aside from this, however, the fact that the petitioner was a freeman is proved by the evidence introduced. He seems to have been regularly manumitted by a proceeding before a notary in 1808, under the Spanish law then in force in the country comprising Hancock county. By the Spanish law then in force, the appellant can claim his freedom on two grounds, first, the instruments of manumission, which are old enough to prove themselves, when taken in connection with the fact that the appellant had exercised his rights under them since their execution. Second, on the ground of prescription, having exercised the- privileges of a freeman in the county where his father and pretended owner lived without restraint, for a period of time which entitled him to his freedom; and these rights attached anterior to the introduction of our state law on this subject, and are not defeated by them. For the Spanish law the court is referred to 1 Moreau & Carl. Partidas, 587 — 591. The proof further establishes that from the date of the instruments referred to up to the time of the proceedings below, the said Benoit had been in the full enjoyment of his rights as a freeman. These rights were acknowledged by Bernard Benoit senior, in his lifetime.
    
      2. It is not pretended that the appellant is not the person for whose relief the act of 1844 was passed. Assuming this to be true, we are relieved from the objection named below in regard to the necessity of instituting proceedings to ascertain the escheat. No proceeding of the kind could be instituted in the name of the state, when the state by its own act creates and recognizes a legal heir, for it is only in the absence of legal heirs, that such proceedings are authorized.
    The moment the incapacity of the appellant to inherit was removed, and the rights of the state conferred upon him, he occupied the footing of an heir, and the rights of the state ceased.
    By the act of the legislature - alluded to, the rights of lawful heirs are protected. The existence of such heirs would be a bar to the rights of the appellant. His petition asserts that there are no lawful heirs, and this allegation is not denied by the answer. The statement that there were persons claiming to be heirs was not sufficient to defeat the appellant; his petition should have been, retained unless it appeared that there were legal heirs, which nowhere appears in the record. In this view of the case the court below erred in dismissing the petition, and certainly in basing its decision on the ground assumed.
    
      jE. Fourniquet, for appellee.
    The only material question involved in this case is, whether, under the laws of this state, in relation to slaves, (How. & Hutch. 166, sec. 48,) the said slave (being claimed by the administrator as a slave belonging to the estate) could assert his freedom in any other way, or before any other tribunal than that of the circuit court, before which he should proceed by petition, as pointed out by the statute; and until he has pursued the remedy given to persons conceiving themselves illegally detained in slavery, and established his freedom thereby, he can neither claim property, nór be represented before the probate court.
   Mr. Justice Thacheu,

delivered the opinion of the court.

The appellant filed a petition in the probate court of Harrison county to obtain his distributive interest in the estate of Bernard Benoit, senior, deceased. In this petition, the petitioner alleges that he is a free man of color, and the natural son of the deceased aforesaid, who died leaving no legal heirs; and that by an act of its legislature, the state of Mississippi granted to him all the right, title and interest which it had, by the law of eschéat, in the estate of said deceased. The petition makes all other allegations required by the statute pointing out the mode and manner in which distribution of estates of deceased persons shall be authorized. To this petition the appellee, as administrator of the said estate, filed an answer and supplemental answer, which set up that the appellant was not a free man of color, but a slave, and the property of said estate; and that there were persons claiming to be heirs of the estate of the said deceased. The appellant introduced in evidence an authenticated certificate of manumission, together with other evidence, to establish his freedom, and an act of the legislature of this state, entitled “ An Act for the relief of Bernard Benoit, junior.” Acts of 1844, c. 144. The appellee produced no evidence in his behalf. The probate court dismissed the petition.

At the expiration of the time restricted by the statute, the law makes it incumbent on a probate court to compel the distribution of an estate to the persons entitled and praying for the same, upon their first entering into bond and security. Murdock Adm’r. v. Washburn et ux. 1 S. & M. 546. Such an application can be made by and granted to an individual dis-tributee, without joining his co-distributees, if such exist. The bond and security always required, are designed to protect the rights of such distributees as may subsequently make their claim good to distribution, as well as the rights of creditors of the estate. H. & H. 406, s. 70. The circumstance that other claimants to distribution of the estate existed in this case, was not a sufficient ground of objection to the appellant’s petition.

In order to enable the appellant to have obtained distribution under his petition, itwas incumbent upon him, under the statute, to show that he was entitled to it. Ibid. The issue as to his freedom must necessarily have been disposed of in some mode in the probate court. Perhaps the best mode, and one which might have prevented multiplicity of suits and litigation, would have been for one or the other party to have required the probate court to have sent that issue into the circuit court, as allowed by the statute, H. & H. 473, s. 17, 18. Enough evidence, however, seems to have been introduced on the trial below by the appellant to establish the character in which he prosecuted his petition; and no attempt was made by the appellee to contradict it.

The judgment of the court below is therefore reversed, the petition directed to be reinstated in the probate court of Harrison county, and the prayer of the petition allowed, upon petitioner executing bond with security according to law in such cases, unless the other party require an issue to the circuit court.

It is perhaps proper to add that the judgment in this case is no bar to any proceedings which may be instituted hereafter by the administrator of the estate in question to obtain possession of the appellant as a slave, the property of said estate; and that it is not conclusive of the freedom of the appellant in any issue that he may hereafter be called upon to make or cause upon that inquiry.  