
    Jemima Holloman vs. John Holloman.
    On the application of the widow to he endowed, or to have distribution out of the property of her husband, the probate court cannot try the right to the property if it be claimed by adversary titles; in such case the court must allot the dower to the widow and leave the adverse claimants to contest her right in the courts having jurisdiction of such controversies.
    An allotment of dower by the probate court does not determine the widow’s right to dower in the property allotted, if contested ; and the party contesting may set up and maintain, in the proper courts, a paramount title to that of the widow.
    The probate court is not the proper tribunal for the settlement of adversary claims to property ; and if litigants submit the question of title to that court, and permit it to make a decision without objection, such consent will confer no jurisdiction, and the decision will be void.
    'Where dower in property is allotted to the widow, and she fail to receive it, or be evicted, her part must be again allotted or compensation awarded her out of the estate. A., the widow of B., applied to the probate court to be endowed of certain slaves owned by B. in his lifetime; C.,by petition, claimed the slaves by purchase from B. before his death; the court tried the issue and awarded the slaves to C. Held that the court had no jurisdiction of C.’s petition; should have dismissed it, and allotted the dower to A.
    Appeal from the probate court of Tippah county. Hon. Robert R. Thomas, judge.
    Jemima Holloman, the appellant, filed her petition on the 17th of January, 1844, for dower in certain land and slaves. The petition as to the slaves was contested by John Holloman, the appellee, who filed a counter petition, setting up his claim on the ground that he purchased them on the 21st of July, A. D. 1837, from Nathaniel Holloman, deceased, the husband of petitioner, and took a bill of sale. The petitioner filed a bill of discovery, setting out that her husband, at the time of the alleged purchase, was enfeebled by age and disease, and in a great measure incapable of transacting business; and that, by imposition,, undue influence and fraud, the appellee, who was his brother, prevailed upon him to give a bill'of sale for the slaves; that no consideration, was paid or contracted to be paid for them; that they were worth $1700 ; and calls for a discovery. Appellee answered the bill, admitting that petitioner’s husband was enfeebled by disease for some time before his death, and when the bill of sale was executed : but denies that appellee exerted an undue influence over him, and asserts that the deceased was of sound and disposing mind; that Nathaniel Holloman was indebted to him in the sum of one hundred and sixty-one dollars, and this formed part of the consideration of the bill of sale; and as an additional consideration, appellee agreed to pay all the'just debts of the said Nathaniel, remaining unpaid at .his death, and to keep the property together for the purpose of maintaining the petitioner during her lifetime; and it was further understood that after the death of petitioner the property was to be divided between appellee and his two sisters. He further states that he has, in pursuance of his purchase and contract, paid the taxes on said slaves for several years, had discharged several hundred dollars of the debts of said Nathaniel, and expended something in preserving the property, and in supporting the petitioner. The probate court refused to allot dower to the widow in the slaves; but decreed them to John Holloman, from which order the petitioner appealed.
    
      William G. Thompson, for appellant.
    It is manifest, from the pleadings in the case, that the slaves have remained in the possession of Nathaniel Holloman and petitioner ever since the date of the bill of sale, 21st July, 1837; the petition was filed in January, 1844. There is no proof that the claim of appellee was ever recognized by any act or admission of either petitioner or her husband after the time of the alleged purchase.
    
      William Thompson, on the same side.
    
      A. C. Baine, for appellee.
    The appellee and plaintiff below, presents á case something like suggesting that a fraudulent conveyance had been made by her husband to defendant in h'is lifetime, and asks the p’robate court to set it aside arid give her dower. This is the gist -and scope of the thing, though perhaps not precisely so !in form. Indeed, it assumes exactly that form after the -1)61111011 for discovery was filéd. This is the plaintiff's case.
    The defendant plants himself upon a légál title, coupled with an interest beneficial to himself, and as a trustee for others, Until and upon the determination of a particular estate, for the life of the plaintiff.
    This, I think, is a tolerably-fair (if not entirely so) statement of the questions involved in this record. And I think I neéd not argue to this court that both were far beyond'the jurisdiction of the court of probate. And therefore leave the case with this naked statement of it.
   Mr. Justice Claytón

delivéred the opinion of the court.

This was ah appeal from an order of the probate court of Tip-pah county, disallowing a petition for dower or a distributive share in certain slaves.

The claim was resisted by the appellee, who filed a counter petition and prayed to be admitted as-a party, which the court allowed. He claimed title to the slaves adverse to the widow, under a conveyance from the husband, and upon the hearing, the court decided that the slaves were his, and'rejected the petition of the widow as to them.

A preliminary point is presented, as to the power or jurisdiction of the probate court, to try the rights to property claimed by adversary titles, of which the widow -seeks to be endowed or to have distribution.

It is not an easy matter, at all times, to trace the lines which separate the jurisdiction óf the several courts in this state. Causes of controversy sometimes have such extent and scope as either to blend the jurisdictions almost imperceptibly, or to make it necessary for one court to decide a portion of the controversy and a different court another portion. That is the case, in some degree, in this instance. It undoubtedly belongs to the probate court to decide upon the right to dower or distribution; but it is the province of a court of law or of equity to pass upon adverse and conflicting titles. If in this state, as in many of the others, courts of equity possessed concurrent jurisdiction over matters of dower and distribution, that court might decide this whole controversy. But as the decisions are, that the jurisdiction of the probate court is exclusive as to matters confided to it by the constitution, and the jurisdiction of equity is equally exclusive over matters coming within its appropriate sphere, it follows that in a case like this, neither court can decide the whole controversy. The widow’s right to dower or distribution must be determined by the probate court, whether the property is subject to that right, in the court of adversary claims, must be submitted to another tribunal. The organization of the court of probate, and its mode of proceeding unfit it for the investigation and decision of complicated rights of property. It hence follows, that the controversy in regard to the title to the slaves in this case, was not properly taken into consideration by that tribunal.. It had no jurisdiction of it. After much reflection, we are led to the conclusion that what is thrown out in the Farmers & Merchants Bank of Memphis v. Tappan, 5 S. & M. 128, must be adhered to as the law. “ The order of admeasurement cannot affect or prejudice the right to dower, or the legal or equitable bar to it. These rights, if litigated, remain open for investigation in the ordinary course of justice. If the right to dower be denied, the party may protect his possession, notwithstanding the admeasurement, and drive her to her action at law.” 5 Cow. 168.

The rule that the court of probate cannot settle adversary claims to property, must be established as the true intention of the law. If the widow be sued, or if she have to bring suit for the property set apart to her, her rights must be settled by the same tribunal which would have jurisdiction between other litigants in like circumstances. If she be lawfully evicted, her part must again be allotted her, or compensation awarded her. Scott v. Hancock, 13 Mass. 168; Co. Lit. 35. These rules are very clearly stated in a recent work of unusual merit — a work calculated to be of great service in, the administration of the probate law in this state. North, on the Law and Practice of the Probate Courts of Mississippi.

It is true that in this case the parties voluntarily submitted to the jurisdiction of the court, and permitted it to make a decision, without objection. Is this a cage in which consent can confer jurisdiction? We think not, for the reason that the subject-matter is not confided by the constitution to the probate court. If the objection to the jurisdiction grew out of any matter relating to the persons of the parties, then consent might confer the jurisdiction; but consent cannot give power to a court to enter up judgment in a case in which the law did not confer authority to do so. County of Yalabusha v. Carbry, 3 S. & M. 551. It is not easy to reconcile all the cases on this head, yet we think this is the true rule.

The consequence is, that the order of the probate court must be reversed, and the petition of John Holloman dismissed for want of jurisdiction. The petition of Jemima Holloman must be allowed, but the rights of John Holloman will not be prejudiced, nor will he be precluded from contesting her claim in any court having jurisdiction.

Decree of probate court reversed and cause remanded.  