* The Reporter is requested to state that this case was never seen by Judge Howard, but was made up by the counsel and a pro forma judgment entered as they agreed. The petition was filed in the county court of Perquimans (164) against Willis D. Riddick and wife, and sets forth "That one Jesse Stallings, the father of your petitioner, Sophia, died in the county of Perquimans, 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 *Page 126 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 into her possession." . . . "That 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 (165) provisions of that paper are sufficiently set out in the opinion of the court, for all the purposes of this case.
The defendants appealed. The decree in the court below is erroneous and must be reversed, and the petition dismissed.
There are so 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 no judgment pro confesso; no issue is made, either of law or fact, and there is no order setting the case for hearing.
2. There is no allegation that the slaves, which are to be divided, or the money, of which an account is prayed, are in the possession of either the plaintiffs or the defendants.
3. 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 embrace 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 courts, and has never been *Page 127 assumed before this case, 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, etc., to the legatees.
4. The petition alleges that Priscilla Stallings was, by the will of Jesse 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 effect of the will, is a question which cannot now be decided. The slaves, property, money, etc., are given to Priscilla Stallings, Sophia White, and Mary Riddick, to be equally divided between the three. This vests in Mrs. Stallings an absolute estate, just as it does in Mrs. White and Mrs. Riddick, (166) 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 his 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, 58 N.C. 352; Hall v. Robinson, 56 N.C. 349; Newland v.Newland, 46 N.C. 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. Reversed, and petition dismissed.