Opinion
June Term, 1824.
Land given to a child by way of advancement shall not be brought into hotchpot upon his claiming a share of the personal estate. Legacies given by testator's will cannot be brought into account in the distribution of personalty as to which he died intestate.
PETITION heard before Nash, J. The petitioner set forth that William Wilson died in 1817, leaving a widow and children, of whom the petitioner was one, and leaving also a last will and testament by which he appointed Hightowner his executor, who qualified as such; that William Wilson, one of the defendants, son of William, deceased, had received from his father in his life time an estate of 350 acres of land by settlement; and the other children, who were defendants, had received under the will of their father — the one 600 acres of land and a negro, the other 350 acres and a negro; that besides this property, William Wilson, the father, died possessed of personal property, which he did not dispose of by will, to the amount of $1,752, of which the defendant Hightower took possession; that the petitioner was entitled to nothing under her father's will, and had received from him, in her lifetime, property of the value of $74; that an inventory of this property was made out, sworn to, and presented to the executor. The petition charged that the widow (77) was provided for, and that the shares of the children were more than their proportionate shares of their father's estate; and the petitioner claimed to be entitled to that portion of his estate of which her father died intestate.
The court decreed that the petitioner should have equal distribution with the widow and the other children of the property undisposed of by will, and that petitioner should pay her own costs and those of the defendant Hightower, and that the other defendants should pay their own costs; whereupon petitioner appealed to this Court.
All the defendants in this case claim the property under the will of their father, except William, who received a tract of land by way of advancement, as to which, if the question had been undecided, I should have thought it was to be brought into hotchpot upon his claiming a share of the personal estate. But though I did not concur in the decision of Jones v. Jones, 6 N.C. 150, I feel myself bound by it, more especially as many estates have been divided according to it, and the unsettling the law at this time would lead to much confusion. On this ground, and this alone, I am of opinion that the land claimed by William as given him in the lifetime of his father, is not the subject of distribution when a claim is made for the personalty. As the act of 1766 required only that property to be brought into hotchpot which has been settled or advanced to the child in the lifetime of the parent, it necessarily excludes all that which passes by will; and all the children are, consequently, entitled to a distributive share of the personal property of which William Wilson, the father, died intestate, and the judgment of the Superior Court must be affirmed. As the words of the act of 1784, by which the descent of lands is regulated, are not restricted to an act in the lifetime of the parent, a different construction has been made in regard to the settlement of lands, but respecting which no (78) question arises in this case.
I was one of the Court that decided the case of Jones v. Jones, 6 N.C. 150. I was in the minority; but I consider myself bound by that decision, because many estates have been settled and are now held under it. On that account, in the present case, the real and personal property cannot be blended together.
Nor do I think that legacies given by the testator's will can be brought into the account under the law of distributions. As it appears that there were no advancements made by the testator in his lifetime, I think division can only be made of such property as the testator has made no disposition of, and as to which he died intestate. Let the judgment below be affirmed.
HENDERSON, J., concurred.
Cited: Ford v. Whedbee, 21 N.C. 21.