delivered the opinion of the court. The plaintiffs state, that their mother left the city of New-Orleans for Beau ford, North Carolina; that neither she nor the *510vessel she sailed in, were ever heard of; that the defendants are in possession of a house/⅞ and lot, part of her estate: they pray to be a sen^ ',0*° provisional possession of the house ar)d ^ot’ an^ that the defendants may be de- i creed to pay them the profits. The defen- -.i ¿jan{;S pleaded to the jurisdiction of the court, ,i and title in themselves. • • S
The court decreed provisional possession, but dismissed the defendants with their costs. The plaintiffs appealed.
Their counsel contends the court of probates has, by the act of 1820, p. 92, sect. 1, jurisdiction of all cases which relate to the putting into provisional possession the heirs of an absentee.
This is certainly true, and the judge a quo has done so by decreeing the provisional possession to the plaintiffs; if they claim, as part of the estate, any property in the possession of any one, they must assert their right of the estate contradictorily with the possessor, -■ the ordinary tribunal. Surely, the section <• lied on, did not authorise the collection of debts due to the estate, in the court of ■probates. ■ '
M'Caleb for the plaintiffs, Morse, and Mat/bin for the defendants.It is therefore ordered, adjudged and de- • creed, that the judgment of toe court ot probates be affirmed, with costs.