delivered the opinion of the court.
This is an action to annul and set aside a will, and to recover the property of the testator. The late Thomas Farrar M'Caleb, died in November 1832, and in his will left all his property to his natural son. He appointed his father, who resided in the state of Mississippi, the executor of his last will and testament, earnestly requesting that he would carry his will into effect. Besides, his father, the mother and eight brothers and sisters, or descendants of these, were still living and residing in that state. His father took upon himself the administration of the estate. One of the brothers renounced his share in the succession.
*464The father and mother and all the the brothers and sisters, or t]jejr descendants, (except the brother that renounced,) are plaintiffs, and have instituted this suit against the natural son, assisted by his mother and natural tutrix, who are made defendants. The prayer of the petitioners is, that the will be annulled, and that the estate of the deceased, after deducting that portion of it which the law permitted the testator to bequeath to his natural son, may be delivered up and partitioned among the legitimate heirs, the plaintiffs in this suit.
The answer of the defendant avers, that the plaintiffs, by several acts they have done, have recognised and acknowledged the validity of the will, and have thereby deprived themselves of the faculty and power of contesting the defendant’s right and claim to the property under it.
In a supplemental petition, the plaintiffs further alleged, that the testator had, in his lifetime, made donations of land and slaves to the defendant, disguised under the form of sales. They therefore pray that this property be also divided and partitioned out among them.
When this supplemental petition was presented, an exception or plea to the jurisdiction of the Court of Probates was put in and sustained.
The court proceeded to decide upon the original demand, as set forth' by the plaintiffs, and decreed a partition of the estate, and directed that the defendant, as natural son, was
entitled to one-fourth of the whole succession of his father, which was the disposable portion; that he is also entitled to three-eighths of the whole succession, for the shares renounced by the father and mother of the deceased, in consequence of the former having accepted the executorship; and to one-eighth of the three remaining eighths of the whole, for the share renounced by T. H. M£CaIeb: that these rights or shares devolved on him as instituted heir. This basis made the defendant legal owner of forty-three sixty-fourths of the entire succession. From this decree, the plaintiffs appealed.
The Court of ^bj^isaioüoñ m a .suit for. a partition, m -which the tietheprethe plaintiff aisale under which and simulated. *e aunuimeiof a will and partition'ofthe estate, -where a supple-ff^enpt^ai lepps tl>at i)art of the property of the estate has dpIentoVas^a disguised donation, and elaiming to have it partitimf^his bee0£g°dé^d as an additional paitoftimPoriginalPellt¡on. Probate^asauobo^echaiS:ter and validity of sales of land and slaves, when the coUatoaiiy1*^ die examination of oilier matters in which it has Jumdlotlon-The first ground of complaint by the appellants, is made to the decision of the Court of Probates, sustaining the exception to its jurisdiction, in relation to the matters set forth in the supplemental petition. Had this petition been the only one, and the basis of the action, the case could not have been distinguished from that of Reel vs. Knight, 5 Martin, N. S., 10, in which we held that the Court of . ", ... Probates was without jurisdiction m a suit for a partition, m which the defendant set up a title in himself to the property in contest, and the plaintiff alleged that the sale to the former was simulated and fraudulent.
In this case the supplemental petition is, in the opinion of the court, to be taken and considered in conjunction with the original one, to which it is merely an addition and component part.
In this point of view, the present case has a much greater A • _ ,1 * z. . resemblance to that of Baillo et al. vs. Wilson et al., 5 Martin, N. S., 214, and Gill vs. Phillips, 6 Ibid., 304, in which it was decided, that the Court of Probates had authority to i-, / i itt _ , . , . , decide on the character and validity of sales of land and slaves, which made part of an estate, when the question arises collaterally in the examination of other matters, of , . which the court had jurisdiction.
i In these two last cases, the court of probates was called on, to. test the validity of certain conveyances of part of the estate, in order to ascertain its amount, for the purpose of a correct partition; and this court was of opinion, that in order to exercise its ligitimate authority in the partition of the estate, avowedly distributable by this court, it became necessary, collaterally, to inquire into the character of these sales and conveyances, which comprise a part of the property ^ 11 r r J forming the. entire amount to be partaken. The Court of Probates could not know the amount of the whole estate without this; and its authority to go into' this inquiry was , . . , , . , conceded, although it would not possess this right, when every part of the property, the partition of which was sought, was denied to be a proper subject of partition by that *466court, but which was claimed under a sale and purchase by the defendants
So, where the natural son is alleged to have received donations inter vivos, disguised in the form, of sales, which is required by the legitimate heirs to be brought into partition, the Court of Probates has jurisdiction to inquire -collaterally, into the character of these sales, to ascertain, if this property is to be included in the partition of the whole estate.It now becomes necessary to test the pretentions of the defendant, to the estate of which the testator died in possession, and in order to do this, we are required first to ascertain, whether the latter made any donation inter vivos to the former, and if he did, what was the value of the property thus bestowed on the natural son! The law renders him incapable of receiving more than one-fourth of his father’s succession, when there are, as in this case, forced heirs still living. If, therefore, he has received by donation, inter vivos, property, the value of which exceeds one-fourth part of the aggregate value of the entire property of the donor at his death, and that of the donation included, he has then received all the law permitted, so that his pretensions to any. part of the estate left by the testator at his decease, must be rejected. If it be shown that he has received less than one-fourth of the aggregate value, the plaintiffs must be restrained, and the defendant allowed the sum, which added to the value of the donations he has already received, will make1 one-fourth of the aggregate amount of the succession, including the donations made in the lifetime of the donor.
The Court of Probates cannot arrive at an essential and correct result, as it respects the amount of the estate to be divided, without testing the character of the conveyances in question, when one of the parties alleges them to be feigned, and the adverse- party avers them to be real sales. The court must, therefore, exercise the authority, as it has the power, to examine into this matter. This is necessary to the exercise of its ligitimate jurisdiction. Cum quid conceditur; conceditur et id per quod pervenitur ad illud.
The Court of Probates, in our opinion, therefore, ought to have overruled the plea or exception to its jurisdiction. This error renders it- necessary that the case should be remanded for the action of that tribunal, on the matter alleged in the supplemental petition.
*467It is, therefore, ordered, adjudged and decreed, that the judgment of the Court of Probates be annulled, avoided and reversed, the plea to the jurisdiction overruled, and the case remanded for further proceedings, according to law; the appellee paying the. costs of this appeal.