#### Moss vs. Sandefur, ex.

It was the intention of the legislature (secs. 46, 41, 48, ch. 4, Mg.) to invest the Pro-hate Court with jurisdiction to compel a discovery on oath, &e., where persons were intrusted, in the lifetime of the deceased, with custody of his effects, or at or about, the time of his death, or soon afterwards, they come into their possession either casually or by design, and they continue to hold the same quietly and secretly, without color of lawful authority; but not to invest the Probate Court with jurisdiction of contested rights, and matters of litigation, as to the title to property, between the executor or administrator and others..

Pike & CtrMMms, for tbe appellant.

The-civil rights of a slave, were- merged in tbe master. Any donation or conveyance of property to a. slave, wbicb tbe master chooses to accept, vests-alone in tbe owner. “1 Bleb. Oom. 424/ 1 D&mcotfs Civil Z(m,jc>r 143, curb. 1. sec. 97 / 4 JDesscm. 266, 267. Property found by a negro, vests in tbe owner. 1 Stewa/rt- JRejp. 320/ 9 Mm.. 271/ 2-JPicJs. 424.

Tbe Probate Court bad no jurisdiction. In any event, tbe *382‘claim was an ordinary one for money bad and received, and not .a proceeding for specific property. Art. 3,sec. 10, -Const.; ch. 48, sec. 5, Bern,. Btat.

Curran & Gallagher, contra.

There can be no question but what the Probate Court had jurisdiction. That the statute is ‘constitutional, see Welch vs.. Lloyd? 5 Ark. Bep. 369.. The petition and affidavit bring the .case within the statute. (Big,, ch. 4, sec. 46,) and case cited.

Mr. Justice Soott

delivered the opinion of the Court

This cause was brought here by appeal, from a judgment of the •Circuit Court of Hempstead county, affirming a judgment of the Probate Court, in the matter of .a summary proceeding against the appellant, at the .suit of the appellee, .as the executor of J ames H. Dunn, deceased, under the provisions of the statute authorizing the Probate Court, in certain cases, upon complaint of embezzlement or -.concealment, to cause the party implicated to come before the court and discover on oath, and be further dealt with, if convicted. Dig.? ch. 4, sec. 46, 47,48.

In the petition, which is verified in the manner prescribed by the statute, it is alleged that the petitioner “ has been informed, and believes correctly, that J ames Moss has in possession, and has concealed money, belonging to the estate of the said James H. Dunn, deceased. Tour petitioner, therefore prays, ” &c. Process of summons issued, commanding Moss to appear, and an-tswer “ a charge of concealing certain money, belonging to the •estate,” &c. The executor -filed a number of interrogatories in writing, some of which were very general, to which he desired the answer of Moss. Moss appeared in obedience to the summons and filed his answer in writing, in response to these interrogatories the substance of which is as follows, to wit: That theretofore, there had been born of a certain negro woman slave, named Mourning, who was owned by, and is the property of, the heirs at law and distributees of James Moss, deceased, a female -child, *383nfl.mp.fl Eliza.. That he had been informed, and believed it to be-true, that James H. Dunn, in his lifetime, at divers times, and to divers persons, had admitted he was the father of Eliza, and-recognized her as his child, and that he had made- application to the heirs of James Moss, deceased, or to- some of them, to purchase said child Eliza,, that he might manumit h^r. That he had been informed, and believed it to be true, that said Dunn, in his-lifetime, and some time before he-made and published his last-will and testament, “ had given, delivered, and placed in the-hands of said slave,.Mourning,” the sum of three hundred dollars, tobe applied to- the purchase and manumission of said child Eliza. That, several months before the death of Dunn, two-months at least, - — the said slave Mourning, at that time hired to and in the employment of said Dunn, brought to the respondent a sum of money in coin, which she said was three hundred dollars, and offered to leave the same in pledge with the respondent,, as an indemnity against the death of said child, Eliza, which respondent had refused to permit said Dunn to take with her mother to Fulton-,-because, of the then unhealthiness of that place;- and the-jeopardy of the life of said child from that source. That, at the-time of the death of Dunn, the slave Mourning was not hired to him ( Dunn,) nor living-with him; but was in the service of respondent. That Dunn died at Fulton, and respondent’s residence-at that time was- some twenty miles from that place. That respondent went to Fulton, some five or six days,: or a week after the death of Dunn, which was his first visit there after that event, and that was the first time, after that event, he had seen-said slave Mourning; and said slave, at that time, placed into the-hands of the respondent the sum of two hundred and eighty-two-dollars,jfor safe-keeping.. That this sum “is all the-money that said slave ever gave to the respondent, for'safe-keeping, ” “and that he now has and holds the same, for the use and benefit off him, her, or them, to whom it may pertain. ”

He' denies that said slave Mourning' took said ■ sum, or any ether sum, either from- the store- of the said Dunn, or from about *384his person, either about the time of his death, or at any other time, without his (the said Dunn’s) knowledge and consent. He denies that he, the respondent, “ on the day of said Dunn’s death-, or at any other time, ever received any sum of money whatsoever, as he knows or believes, which belonged to, or was owned by Dunn, at the tim$ of Ms death.” “ All of which said responses, allegations, and facts, in response to said general enquiries, this respondent avers and verily believes he can prove and establish, if permitted by the court, by competent and credible witnesses, except the offer of the said $300, as an indemnity for the life of said child Eliza.”

Having thus responded to the interrogatories, he makes answer to the allegations contained in the petition, in the following terms, to wit: “That it is not true, that he has in his possession, nor has he, this respondent, concealed any money which belonged, or belongs to the estate of the said James H. Dunn; nor is it true, that the said John B. has been or is correctly informed in regard to the same, as he, in his said petition, has alleged; but it is true, and so this respondent avers the truth to be, that, at divers times, this respondent has conversed with the said John B., in regard to the said sum of money, so by this respondent received from the said slave Mourning, as above stated, and always informed the said John B., of the material facts in regard to the same, and never denied to him, or any one else, the fact that he had received from the said Mourning, the sum by him received as herein above stated and admitted.”

He then denies the jurisdiction of the court in the premises, and insists that the remedy, if any, is in the Circuit Court; but submits that if the court retains jurisdiction, the law deducible from the facts is on the side of the respondent.

The entire response is verified by affidavit. Hpon ap. inspection of the petition, interrogatories, and answers, as is Stated in the record, that court was “ of opinion that said sum properly belongs to the estate of the said James B. Dunn, deceased, and the record proceeds to state, “It is therefore considered, ordered, *385•and adjudged, tbat tbe said Jobb B. Sandefur, as executor of the will of tbe said James H. Dunn, decased, have and recover of •and from tbe said James Moss, tbe aforesaid sum of two hundred and eighty-two dollars, so admitted by bim as aforesaid, and tbat tbe said Moss deliver tbe same up to tbe said John B. Sandefur, ¡as sucb executor.”

Tbe -appellant took a bill of exceptions, -showing tbat tbe court 'overruled bis 'objection to tbe jurisdiction in tbe premises, and upon tbe merits found and adjudged for tbe appellee.

It will be observed, tbat tbe appellant set np no claim to tbe money in question, either in bis own right -or in that of tbe heirs ¡at law-or distributees'of James Moss, deceased; but averred tbat be bad -and bold tbe same for tbe use and benefit of whomsoever It might rightfully 'belong to1; andas tbe Probate Court adjudged no costs against bim, It may be inferred tbat be was in tbat court regarded as presenting himself in tbe attitude of a stake-holder. "Whether or not be was tbe legal representative -of tbe estate of •James Moss, deceased, or was -one of the heirs at law, or distri-butees-of tbat estate, does not appear. But, as tbe judgment of the Probate Court in this proceeding, where neither tbe legal representatives, nor tbe heirs at law, or distributees of James Moss, deceased, were parties, -could not exonerate tbe appellant from -a suit for tbe money in tbat behalf, wherein it would have to be determined what right these parties bad to tbe money in •question, upon tbe foundation of tbe -ownership of tbe slave in •question, the appellant would have sufficient interest in the controversy to authorize bim to question tbe correctness of tbe proceedings and judgment.

Tbe first and. most important duty of an executor, or administrator, after bis induction into office, is to collect, and take into bis possession, and make and return an inventory of, tbe personal goods and 'chattels, moneys, books, and papers; and other evidences of debts belonging to tbe estate -of bis testator or intestate. And it was in aidofthis duty, that the jurisdiction in question,un-*386«1er which these proceedings were had, was invested in the Probate Courts.

This view of the provisions of the statute in question, was taken by the court in the ease of Welch vs. Lloyd, (5 Ark. R. 370;) and is supported as well by the language used as by the context. In the original enactment, the sections of the statute cited above, as those under which these proceedings were had, and which passed under the notice of the court in. the case cited, were numbered 47,48, 49, and 50, in a consecutive series numbered from 42 to 56, inclusive, all exclusively upon the subject, and making numerous provisions for the collection, inventory, appraisement, and return of decedents’ effects.

To aid in the performance of these important duties, the particular provisions in question invest the Probate Courts with authority to compel the attendance of persons charged, in the manner prescribed, either with concealing or embezzling any such effects, force them to make discovery on oath, and, if found unlawfully detaining any such effects, order their delivery to the executor or administrator entitled to receive them, and enforce obedience to the order by attachment.

The investment of such authority in these courts, was peculiarly appropriate in view of their functions in our Probate system, and doubtless the practical effects of its -exercise have been altogether salutary, in all those cases, not of unfrequent oc-curence where persons, who have been intrusted, in the lifetime of the deceased, with custody of his effects, or who, at or about the time of his death, or soon afterwards, coming into their possession, either casually or by design, hold quietly and secretly, without color of lawful authority, and evading any discovery of the truth in the premises, either by direct means or studied silence; all with fraudulent views, stimulated by the difficulty or impossibility of proof, on the part of the executor or administrator, either of ownership or identity..

In cases where the executor or administrator may have had no knowledge of the affairs of the deceased, in his lifetime, he might, *387 by such means, be seriously obstructed in tbe performance of these important duties, and in proportion to bis want -of such knowledge, be hindered and baffled, and precisely in this ratio would the chances of escape from detection be increased, and such fraudulent designs stimulated. To meet such emergencies, the remedy adopted of forcing the moral offender who would rob the dead, to merge his moral into the .criminal offence of outright perjury, or let go his unrighteous hold, cannot be without efficacy. "Under its operation, the man of conscience, who may have quieted its voice, will hear it speak .again in spite of him, when he approaches this open crime; and the hardened offender will at least 'calculate his chances >of .escape from the pains and penalties of perjury. When .the authority in question is made to extend to the large class of cases, to which we have alluded, and the class must needs be large and .infinitely various, because, fraud itself is “infinite,-” as remarked by Lord Hakdwicx:, in.his letter to Lord Kaimes, manifesting itself as well in the suppression of the truth, as in the suggestion of a falsehood, it was a matter of sufficient importance, in point of mischief, to have attracted the attention of the Legislature, without .supposing any regard whatsoever was had to the very questionable policy of turning into Probate Courts, from their accustomed channel, a great stream of litigation touching contested rights to personal chattels, which these courts from their constitution are so little calculated to sustain. Nothing short of a much more distinct and emphatic expression of the legislative will, to that effect, conld authorize such a .conclusion.

In our opinion, "it "is clear enough, from the obvious mischief, and the expressed remedy, when viewedin connection with the subject matter, and reasonable scope of tbe provisions made, that such, was not the intention of the Legislature, hut that it was to -confine this jurisdiction to the class of cases above, which we have designated; or, at most, if it is to extend beyond to any •case where the discovery required shows lawful color of adverse claim, either of possession.or property, whether in the party ma-*388Mng the discovery, or in a third person, it would be of that class-of adverse claims wMcb the Probate Court could properly authorize the executor or administrator to extinguish, for the benefit of the estate; such,, for instance, as prior vested liens, like the-inn-keeper’s.

In the case before us, the discovery that was required, shows the money in question to be in such an equivocal attitudej as to-be reasonably a subject of litigation between the executor, or administrator- or distributees of James Moss, deceased, predicated upon the- ownership of the slave, who deposited it, for safe keeping,, in the-hands of the respondent, and the executor of Dunn, who claims, that it had been derived from his testator in his lifetime, or had been abstracted from his estate since his death, in some manner that did not divest his- right to- it. The case then,, shown by the discovery,, was not of either class to which the- authority of the Probate Court to make the order of delivery, extended; and, therefore,, the court erred in making-that order.

The judgment of the Circuit Court must be reversed, and the cause remanded to that court, with instructions: to reverse- the judgment of the- Probate, and enter up and certify to that court such a judgment a&ought to have been entered up there. (.Dig <£&, 4 see. 181,, 182.