Opinion
(June Term, 1859.)
Under the Revised Code, chap. 38, sec. 2, an estate, pur autre vie, given to a child by an intestate father, is subject to be brought into hotchpot as an advancement in the division of other lands.
One half an estate in land given by an intestate by deed to his daughter and her husband, is subject to be brought into hotchpot.
CAUSE removed from the Court of Equity of Greene County.
J. W. Bryan, for the plaintiff.
No counsel appeared for the defendant in this Court.
Windsor Dixon died intestate in 1857, seized in fee of a tract of land in Greene, containing 888 acres, and leaving a widow and also six children, and the child of a deceased daughter surviving him, who are his heirs at law. All the children were the issue of a second marriage, except the defendant, Mary E., who is the wife of the defendant, John H. Coward. The bill is filed against Coward and wife, by the other children and the grand-children, and prays for a partition of the said descended land, subject to the right of dower of the widow; and to that end, after alleging that actual partition could not be made without injury to the parties, it prays for a sale, and that the purchase money should be divided between the heirs, in the proportions in which they were entitled. And, as to those proportions, the bill states that, Windsor Dixon was entitled to, and seized of an estate for his life, as tenant by the curtesy, in a tract of land of which his former wife, the mother of the defendant, Mary E. was, in her lifetime seized in fee simple, and that by way of advancement, he conveyed his life-estate in that tract to his daughter, Mary E., upon whom the reversion had descended upon the death of her mother.
The answer submits to a sale of the first mentioned tract of land as prayed for, but it claims one equal seventh part of that land or its proceeds, because it denies that the conveyance from Windsor Dixon was by way of advancement, and says it was upon a purchase by the husband, Coward, in consideration of a balance of money which the father owed his daughter as her guardian.
Upon the issue of fact thus formed, the evidence establishes that the defendants intermarried in 1847, and that at the end of the year, the father let the defendant into possession of the land, and they continued in possession the three following years; in July, 1850, Mr. Dixon and Mr. Coward came to a settlement, and the latter gave to the former a receipt for $300, expressed to be in full payment for the balance due from Dixon, as the former guardian of his daughter, and expressed, further, to have been paid "in rent of land," and on the same day Mr. Dixon executed a conveyance of his life-estate in the land to the two defendants, Mr. and Mrs. Coward, in consideration of natural love and affection and of one dollar. The annual value of the land at the time Coward was let into possession, is shown to be sufficient to make the rent for three years, at least equal to the balance due him in right of his wife.
A decree was made by consent for the sale of the first mentioned tract; there was a sale of it for $12,000, and an order to distribute the proceeds. The cause was brought on to be heard on the question of advancement, and adjourned to this Court.
Under the statute of descents of 1808, only lands settled in fee simple, were advancements to be taken into account in the partition of other lands descended. But the Revised Code, chap. 38, sec. 2, which went into operation the 1st of January, 1856, which was prior to the death of the propositus, uses the terms "any real or personal estate," which includes every thing settled or given to a child. Those terms are very broad in themselves, but they must be taken in the most extensive sense, when it is considered that all the previous statutes are repealed, and that this act complicates realty and personalty together in this respect, by making an excessive advancement in one kind of estate, a charge on the child's share of the other kind. It seems, a fortiori, that it must be so in reference to the share of the things of the kind of that advanced. For every thing must partake of the one nature or the other, and it is the apparent purpose of the act to make the child account for every thing received in the division, or distribution of the estates. That may lead to serious inconveniences in several respects, and particularly, in some instances where there have been advancements in personalty, by delaying the ascertainment of the rights of the children in the realty, until administration of the personal estate is closed, and the several shares in it, ascertained. But no such obstacle is presented here, as no advancement of either kind is alleged on either side, except that to the defendants, of the father's estate, as tenant by the curtesy. As to that, the statute now in force, is express and conclusive.
The question remains, whether that is to be brought into hotchpot, since the conveyance was not to the daughter, but to her and her husband; and next, which interest is to be taken into the estimate, and at what time. If the point were open, there might be grave doubts whether a conveyance of land to husband and wife is an advancement to be accounted for by her in the partition of lands descended from the father. At common law, it was not so as between coparceners. That consequence attached only to the peculiar gifts in frank-marriage, and not to an express estate tail special; for although a gift in frank-marriage, was a gift in special tail, yet it had this peculiarity, that the reversion in fee, was in the feme, and not in the donor's heirs generally, and upon a dissolution of the marriage by divorce, the estate and enjoyment was in the feme, and not in the husband, as Lord COKE says. On the the other hand, gifts in frank-marriage were to be brought into hotchpot at the full improved value of the land given. — Those analogies would seem to lead to different conclusions from those adopted by the courts of this State on those points; the latter of which, however, are the guides to our law. In Jones v. Speight, 2 Murph. 89, it was held that lands conveyed to the husband were not to be brought into hotchpot in the division between the wife and her brothers and sisters, but that lands conveyed to the husband and wife were, in respect to a moiety of them, to be brought in, upon the ground, no doubt, that the chances of the husband and wife to get the estate, as the longer liver, were equal. There is no sound ground on which this case can be distinguished from that, on this point; and Toomer v. Toomer, 2 Hay. Rep. 368; (1 Murph. 93,) decided that lands advanced are to be valued as of the time of the advancement, and such has been the uniform rule since. It follows that half the value of the father's life-estate, at the time he made the deed to the defendants, is to be taken into account against the defendant, Mrs. Coward, as an advancement, and estimated with the proceeds of the other land, in ascertaining the shares of the several heirs of the whole real estate.
It must be referred to the clerk to inquire into the value of the life-estate at that time, and upon that basis compute the shares, when the price of the sold land shall be brought into Court
PER CURIAM, Decree accordingly.