#### JOSEPH E. BILLUPS and wife v. WILLIS D. RIDDICK and wife.

Where a petition was filed for partition of slaves and money, and there was no answer, no judgment pi's eonfesso, no issue made up, and no order made for setting the case for hearing, it was held erroneous for the Court to pass a decree.

The jurisdiction of the -county court to order a partition among tenants ih common, does not extend to money.

A petition against an executor for a filial portion, &c., will not lie for money or other property delivered by him to a legatee for life.

This was a petition for the partition of slaves, and for an account of money, &c., tried before Howard, J., at Pali Term, 1860, of Perquimons Superior Court.

*164The petition was filed in the County Court of Perquimons against Willis D. Riddick and wife, and sets forth, “ That one Jesse Stallings, the father of your petitioner, Sophia, died in the county of Perquimons, having made a last will and testament, .by the provisions of which, a large amount of property, consisting of negroes and money, was left to Priscilla Stallings during her life, and after her death, the same to be equally divided between your petitioner, Sophia, and her sister, Mary Riddick, wife of Willis D. Riddick.” * * * “ That Willis D. Riddick, one of the executors, named in the said will, took upon himself the duties of his office, and that he assented to the legacies of the said will, and placed the property, given to the said Priscilla during her life, in her possession.” -x- * -x- u Priscilla Stallings has lately died in the said county, leaving a large estate, the gift to her for life, consisting of a large number of ‘slaves, (naming them) and also a large amount of money (about four thousand dollars) and other property, which, by the terms of the said will, now belongs equally to your petitioners, and to the said Willis D. Riddick and wife, Mary.” The prayer is for the appointment of commissioners to divide the slaves, and for an account of the money. The petition was served upon Riddick, and at August Term, 1860, of the said County Court, is this record : “ Decree of the Court in favor of the plaintiffs for partition and an account.” From which the defendant, Riddick, appealed to the Superior Court. In the Superior Court, is this record : “ It is ordered and decreed by the Court, that the plaintiffs are entitled to a division and partition of the negroes in controversy, and that five commissioners be appointed according to law, to divide the slaves. It is also ordered and decreed, that the plaintiffs are entitled to an account of the remaining personal property of Jesse Stallings, on hand at the death of his widow, comprising the capital of the said fund and not the interest accrued on the same, during the life of his widow.” There is no other record in either Court. The will of Jesse Stallings is filed, and it is deemed that the provisions of that *165paper are sufficiently set out, in the opinion of the Court, for all the purposes of this case.

The defendants appealed from the decree in the Superior Court.

Albritton and Jordan, for the plaintiffs.

JEbmes, for the defendants.

Pearson, C. J.

The decree in the Court ‘below, is erroneous, and must be íwersed, and the petition dismissed.

There are s© many fatal objections, that we are at a loss on ■which to put our decision.

1. It does not appear 'by the transcript that an answer was filed; there is n© judgment pro confesso ; no issue is made, either of law or faet, and there is no order setting the case for hearing.

2. There is n© ¡allegation that the slaves, which are to be divided, or the money, of which an aeeount is prayed, áre in the possession of either the plaintiffs or the defendants.

§. The-jurisdiction of the county court to order partition among tenants in common, on petition, is confined to a division of slaves or other chattel property. This does not <e«fbrace money, -and the Court had no jurisdiction to order an account to be taken. That branch of equity jurisdiction is not conferred on the county eourts, and has never been assumed before this ease, except on petitions for legacies, filial portions and distributive shares. But our case does not fall under either of these heads, the executor having long since assented, .and passed the property, money, <fec., to the legatees.

4. The petition alleges that Priscilla Stallings was, by the will of desse Stallings, entitled to an estate for life, in the slaves and other property and effects, and after her death, the same was to be equally divided between the -petitioner, Sophia, and the defendant, her sister, Mary. "Whether this be the legal .effeet of the will, is a question which cannot now be decided. 'The slaves, property, money, &e., are given to Jpii-iscilla Stallings, Sophia White and Mary Riddick, to be *166equally divided between the three. This vests in Mrs.. Stallings an absolute estate, just as it does in Mrs. White and Mrs. Riddick, and we suppose, from the argument before us, that the purpose of the petition was to have a -construction of the will, as to whether the subsequent clause-, in which the testator desires all that part of the property, given to his wife, “ that shall be remaining at her death” to be equally divided between bis two daughters, has the effect of cutting down the estate, given to the wife, so as to make room for the limitation over ; or is inoperative, because inconsistent with the estate before given to her. This depends upon the application of the doctrine discussed in McDaniel v. McDaniel, 5 Jones’ Eq. 352 ; Hall v. Robinson, 3 Jones’ Eq. 349 ; Newland v. Newland, 1 Jones, 463, and other cases.

As a matter of course, this question cannot be decided except in some proceeding, to which the personal representative of Mrs. Stallings is a party, and as the decree, in this ■ case, is based upon a decision of that question, it is erroneous.

Per Curiam,

Judgment reversed, and petition dismissed.