Opinion
(Fall Riding, 1805.)
Where a devisor purchased other lands after the making of his will, and gave a portion of them to one of his children in his lifetime, and died without having disposed of the residue, it was held that the lands advanced to the one child must be brought into hotchpot in the division of the undisposed of lands amongst the devisor's children, and that the lands advanced must be valued as worth at the time of the gift, and the lands to be divided according to their value at the ancestor's death.
PETITION for the division of lands, under the act of 1787, ch. 17. It stated that Henry Toomer made his will in 1789, and devised to his son Anthony, father of the plaintiffs, an equal share of his estate with the defendants, who were also his children; that he afterwards acquired other real estates, and in 1799 died without making any will as to these; that soon after the date of the said will, Henry Toomer gave to his son Anthony part of the real estate he had at the time of making the will; and the question made by the petition were two; First, whether the lands so advanced were to be brought into hotchpot. Secondly, whether, if brought in, they were to be valued as worth at the time of the gift, or of the death of the testator, or at the time when the division shall be made.
Haywood for plaintiffs: The words providing for hotchpot, in the act concerning the descent of real estates, 1784, ch. 22, sec. 2, were nearly the same as those used in the act for distribution of personal estates. They were of the same import, and for the same end and purpose, namely, to establish equality amongst the shares. But hotchpot is not required under the act for distribution of personal estates, unless the case be such as is mentioned in the act, that is to say, a case of total intestacy. The case now before the Court is not one mentioned in (369) the act in which hotchpot is to be used; the case mentioned in the act is where one shall die intestate; here he did not die intestate, for he left a will. As to the valuation in case the advancement is to be brought into hotchpot, it has often been decided in the case of personals, and was so decided in this Court the other day, that the valuation shall be as the advancement was worth at the time of the gift. I can see no reason why the realty should differ from the personalty in this respect.
E contra, it was argued by Jocelyn and Gaston that hotchpot existed at common law amongst copartners (Co. Litt., 176), and, therefore, in cases of division under the act, supposing hotchpot not be to be expressly provided for, it should nevertheless take place. But in truth the act operates upon every case where a part of the realty is left undisposed of; for then he is intestate as to that part, and all the same rules apply as in case of any other intestacy.
Curia advisari. And at the end of the term.
delivered his opinion, and said the lands advanced must be brought into computation and valued as worth at the time of the gift; the lands to be divided must be valued as worth at the time of the ancestor's death.
NOTE. — This case was carried to the Court of Conference, where the judges were unanimously of opinion, that the judgment of the court below should be affirmed. See 5 N.C. 93. See, also, Norwood v. Branch, 4 N.C. 400.
Cited: Dixon v. Coward, 57 N.C. 357.
(372)