
    
      Smith and wife vs. Maxwell’s heirs.
    
    ■’CHAKCEay
    'Case 127,
    Error to the Warren Circuit; Hsifinr P BkoAdnAX, Judge
    
      Guardians. Mortgages> Dower. ■ Disclaimer. Distribution. Decrees. Security.
    
    Guardian of infant dis■chlirirfCaPUt" slave testator had mortgagfor them5su™ ject to the * payment of the mortgage money and interest.
    Such d ianbün^the widow of the testator, after claimed the right to hold the slave so “ ' ¿o^er^cannot hold him. as snch,bat as 6
    
      October 25.
   Judge Mills

delivered the Opinion of the Court.

It seems to the court that the right of redemption to the slave held, must, and did enure to the benefit of the estate of David Maxwell, deceased, when purchased by his widow, and that said slave is subject to distribution as part of the estate, allow-fog to the widow of the deceased, who was guardian ^he children, the price paid for the equity of redemption with its interest, whenever she and her present husband shall be impleaded and called upon by a proper bill for that purpose, to settle up said estate, 11 1 1

And that said defendants below, the widow who was guardian, and her present husband, having denied, and disclaimed the right of holding said slave as dower, cannot hold him as a dower slave, or as c]aimetl in their answer, in their own right, but must be held to hold him as in her capacity as guardian.

And that this bill cannot be sustained as a bill to settle up tbe account of hire of Ned, without settling up the whole guardian’s accounts, and of course that the decree for hire is erroneous.

Billnotmaintainable for distribution in part.

Decree directed against ^im'^ahso]ute owner, and that sho a^¿iar" g¡ye security thatthc slave bo forthcoming.

C. S. Bibb for plaintiffs; Barry and Bepaw for defendants.

And all the relief to which the complainants can be entitled, is a security that the slave shall remain and be forthcoming for distribution, and as the defendants have claimed the absolute right of the slave, the chancellor who will control the conduct and management of guardians, ought to decree the title of the slave to the complainants, and to forever enjoin and restrain the defendants from removing or disposing of him, and to take the possession of the slave from the defendants, and cause him to be hired out, and managed by a commissioner and receiver, appointed under the control of the court, from time to time, unless the defendant Smith, husband of the widow, shall enter into bond with security, appointed by said court, to have said slave forthcoming at the time of distributing said estate among the complainants, and to account for bis past, and future hire, in settling the accounts as guardian.

—. . . , , , . JDecree reversed with costs, and cause remanded with directions for such decree and proceedings as shall not be inconsistent herewith.  