#### Mary J. Jackson *vs.*James M. Jennings and others.

*Partition*— A *slave dying before partition completed, loss falls on general estate*— Measure *of loss, interest on value to time of emancipation.*

After appraisement and division of the personal estate had been made by Commissioners in partition, a slave which had been allotted to A, but which he had not taken possession of, died. Some days afterwards the Commissioners again met and divided the land, and then made their return, taking no notice of the death of the *slave:*— Held, that, as the partition was not complete before the death of the slave, the loss must be borne by the general estate, and not solely by A; and that the measure of loss was not the value of the slave, but interest upon his value up to the time of emancipation, which in the meantime had taken place.

BEFORE CARROLL, OH., AT SUMTER, JUNE, 1863.

The decree of his Honor, the Circuit Chancellor, is as follows:

Carroll, Ch. Upon the death of Hastin Jennings, intestate, the Ordinary made due grant of the administration of his estate. Payment of debts having been made, or provided for, under proper proceedings in this Court, a writ of partition issued to divide the net residue of his visible estate, comprising his lands, negro slaves, beasts of the plough, crops on hand, household furniture and other chattels. The Commissioners first proceeded to make partition of the negroes, and on February 13 and 14,1863, appraised them, divided them into different lots or parcels, and assigned them to the distributees respectively. After the division of the negroes and of the great bulk, if not the whole of the other personalty, but before the Commissioners had divided the lands, one of the negroes named Billy died. He was one of the slaves that had been assigned to the defendant, *173Mrs. Anne McClellan, and the Commissioners had valued him at thirteen hundred dollars. The negro died on February 24, 1863. On the 5th or 6th of March succeeding, the Commissioners divided the lands. Their return to the writ bears date the 12th of that month, and it was filed in this Court on March 28, 1863.

Upon completing the division of the negroes, remarks were made by one or more of the Commissioners importing that the negroes were now at the control and disposal of the parties to whom they had been respectively assigned. For a few days next after their division, the negroes were retained and employed by the administrator upon the premises of the intestate, but after that time they seem to have passed into the immediate possession of the distributees respectively according to the division of the Commissioners, Mrs. McClellan and her husband, S. K. McClellan, were both absent at the division of the negroes, but were represented by L. E. Jennings as their agent. After the negroes had been divided, the slave Billy “ worked for nobody but the estate,” and was never removed from the premises of the estate. Jennings, the agent of McClellan and wife, testified “that he had never had any possession of the negro Billy.” The Commissioners were advised that the loss involved in the death of the slave Billy would fall upon Mrs. McClellan. In their return to the writ of partition, the slave is set down at the valuation of $1,300 among the other negroes assigned to Mrs. McClellan, without any mention of his death being made, or any compensation to her therefor being proposed. Subsequently an order was passed confirming that return, except as to the negro Billy, and reserving the question “whether the loss of that slave falls on the distributees generally, or on Mrs. McClellan alone,” and that is the sole question to be now adjudged. ’■

It is contended that, until the confirmation, of the return of the Commissioners, the division made by them was in*174effectual to divest the interests in common of the distribu-tees and convert them into interests in severalty in the portions assigned to them respectively, and that the slave Billy being therefore, at his death, the property in common of all the distributees, his loss falls upon them all, and not upon Mrs. McClellan solely.

In the opinion of Lord Redesdale, upon the commission of partition in *Ourzon*vs. Lyster, Seaton’s Decrees, 192, it is said the Commissioners “are to act as Judges — they examine witnesses to inform their own consciences, and therefore have a discretion to what points and what witnesses they are to examine. They decide upon the evidence given, and their decision is final, unless the Court sees ground for controlling it. The whole authority of the Court is therefore delegated to them, though subject to appeal. They act as a Court.” The Commissioners, being named by the parties, are regarded as Judges of their own choice, and the principles which apply to arbitrators are held properly applicable to them. *(Jones*vs. *Tatty,*2 En. C. R. 137.) In *Buckler*vs. Farrow, Rich. Eq. Cases,' 180, it is said: “ The Commissioners are the agents of the parties, acting under the authority of the Court, and they are as much bound by their return made in due form, fairly and impartially, as a plaintiff and defendant would be by an award of arbitrators made under a rule of Court.” The result seems to be that the return of the Commissioners means something more than the mere suggestion of a scheme of division, and that a partition by them, regularly and fairly made, is in the nature of a judicial proceeding, and which adjusts and settles the interests of the parties, in the cocsideration of this Court, except so far as it shall see cause to reverse or modify it.

But there is another aspect in which the question may be considered: *“*Partition in this Court is effected by the action of the Commissioners under the writ, and not otherwise.” “ In every case of an order to confirm the return to *175a writ of partition,” says Chancellor Harper, "the order must have relation to the actual-partition, and operate to vest the legal title from that time. The actual partition is a *fact,*and the order of Court recognizes and establishes that fact.” *(Huson*vs. Wallace, 1 Rich. Eq. 6.) It has not been suggested that the slave Billy was unsound, or even indisposed, when the negroes were divided. In the condition he was in at that time, it must be assumed he was fairly worth the value set upon him by the Commissioners. It has not been proved or alleged that the Commissioners placed an extravagant valuation upon him. The division of the negroes, then, was fair and equal at the time it was made. But this was all that the Commissioners were bound to do, or could by possibility have done. The inequality complained of has been occasioned by an event of subsequent occurrence altogether, which, so far as we are informed, no human eye could have foreseen. There are, of course, no means provided by law to preserve equality or proportion between the shares after division. The death of the negro was a casualty incident to the ownership of that form of property. It is not a present division that the Court is invoked to make, but the question is whether it shall approve and confirm a partition already made. No irregularity, misconduct or mistake is imputed to the Commissioners in their proceedings under the writ, except that in their return they included, among the negroes assigned to Mrs. McClellan, the slave Billy, who, at the date of the return, was no longer in existence, and the value of whom, it is insisted, should have been made up to Mrs. McClellan by contributions, ratably, irom the shares of all the dis-tributees. When the Commissioners had made division of the negroes, their work was wholly accomplished in regard to the actual partition of that portion of the property. Their return to the writ was nothing more than an authentic certificate to the Court of what had already been done by *176them as such Commissioners. It is not perceived that they erred in the course that they pursued.

My conclusion is, that the return of the Commissioners in regard to the slave Billy should be also confirmed, and it is accordingly so ordered and decreed.

Mrs. Anne McClellan and husband now moved this Court to reverse the decree of his Honor, the Chancellor, on the grounds:

1. Because the writ of partition refers to, and requires, a division of the whole estate of the intestate, and the *“*work” of the Commissioners is not “ accomplished” until partition is made of all the property included in the writ, .unless suspended by the order of the Court.

2. Because no right or title was acquired by any distrib-utee in any property intended by the Commissioners for such distributee, until a confirmation of return by the Court.

3. Because, until a return is made under the hands and seals of the Commissioners, the manner of allotting the property, and every portion of it, is under their control and power.

4. Because the return made on March 12, 1863, allots to one of the distributees, at the value of $1,300, a negro who was then dead.

5. Because the, testimony proves that the Commissioners, after being apprised of the death of the negro, and before their return, did not proceed on their own judgment in making it in the form it appears as to the dead negro, as they were in doubt, at their meeting on 27th February, who should bear the loss, and requested that counsel might be consulted, on whose advice they acted in said particular.

*1776. Because the return upon its face shows error, to wit, that the gross value in money of the share of one of the distributees in the whole estate of the intestate includes a negro at the price of $1,300, who was dead at the time the Commissioners made a return of their actings and doings under the writ.

7. Because the decree is, in other respects, against equity and justice.

*Be*Saussure, for appellants.

*J. ¡3. Q-.*Richardson, contra.

The opinion of the Court was delivered by

Wardlaw, A. J.

When, in the course of a partition under a writ directed to Commissioners, a chattel has, with the assent of all concerned, been allotted'to a party who takes possession of it, a subsequent confirmation of the return of the Commissioners has relation to the time of actual allotment completed, so as from that time to ratify in that party a title to the chattel which he then acquired. To the return there may, however, be exceptions, and whether before its confirmation' the title is ever more than inchoate, we need not here consider, for in this case we think there was no complete allotment of shares before Billy died. The writ required partition of both real and personal estate. On the 13th and . 14th of February, the* slaves were appraised and thrown into lots, and the lot of each party was designated; the slaves continued for a short time afterwards to remain in the possession of the administrator, for some services to be rendered to the estate; after a few days some of the parties took possession of their lot's, but Billy did not come to the possession of Mrs. McClellan or her agent, *178and died February 24. Afterwards a partition of the lands was made, and tbe return of the Commissioners was signed March 12th, and filed March 28th. In this the share of each party in the real and personal estate, as a whole, was ascertained, and payments from one of them to others was directed for equality of partition. Before the Commissioners completed their work, misfortune had disturbed the result of their earlier operations, and they should not, by adhering to what no longer suited their scheme, have permitted the defeat of that proportionate equality which it was their office and desire to effect. If a new division of the slaves was inexpedient, Mrs. McClellan might, by payments of money directed in the final adjustment to be made to her by others, have been relieved from sustaining singly the burden of the loss, which had diminished the aggregate of the property to be distributed before distribution was complete. What ought to have been done by the Commissioners, this Court is of opinion, should now be done, so far as is practicable and just. But as the emancipation of the slaves has affected all of these parties, it would not be fair to give Mrs. McClellan the full price of Billy, for if she had received him, and he had lived hers, she would, about May 15, 1865, have been deprived of his services, as the others have been of the services of the slaves allotted to them, which they continued to keep. The probable amount of what Billy, if he had lived, could have hired for, from the time of his death to the time of emancipation, is the measure of what Mrs. McClellan has been deprived of, by the assignment of Billy to her. But since we regard Billy as having belonged to the estate at the time of his death, and the exact price at which he was set down .by the Commissioners can be seen, the easier and more precisely just mode of correcting the inequality of partition is to calculate interest on that price, from the day the return of the Commissioners was confirmed, except in reference to Billy, *179up to May 15,1865, and that interest to divide between the parties, as the estate was divided between them, in like shares and proportions.

It is therefore ordered that the decree of the Chancellor be reversed; that the Commissioner do calculate and divide the interest on Billy’s price, as above directed; and that each of the other parties do pay to Mrs. McClellan the share of such interest, which upon such division shall be found due by such party.

Dunkin, C. Jv and Inglis, A. J., concurred.

*Decree*reversed.