Opinion
December Term, 1805.
In making partition, so much of the ancestor's lands acquired by him after making his will as are conveyed to a child by way of advancement, are to be valued according to their worth at the time of the conveyance; and the residue of the lands be valued at the time of the ancestor's death.
HENRY TOOMER made his will in 1789, in which, after several devises and bequests, he directed that the remainder of his estate, real and personal, should be divided among his four children, Anthony, John, Lewis and Elizabeth. The testator died in 1799, having, after the making of his will, acquired other lands and real estate not mentioned in his will. After the making of his will he gave to his son Anthony B., by way of advancement, a plantation called the brick-yard plantation. Anthony B. Toomer died in 1805, and the petitioners, being his children and heirs at law, claimed a share of the real estate of said Henry Toomer which was acquired after said will was made, and filed a petition praying for a partition thereof. They insisted, first, that they were not bound to bring the said brick-yard plantation into hotchpot, because the said Henry Toomer did not die intestate, and that the rule relative to bringing lands into hotchpot holds good only in those cases where the ancestor dies totally intestate. Secondly, that if this plantation should be brought into hotchpot, it ought to be valued at the time of the gift.
From Wilmington.
The defendants contended that Henry Toomer did die intestate as to those lands which he acquired after making his will, and which were not disposed of by the same within the words and meaning of the act of 1784, ch. 22; that the brick-yard plantation ought to be brought into hotchpot and valued according to its worth at the time partition is made, or at the time of the death of Henry Toomer.
The brick-yard plantation ought to be brought into hotchpot and valued at the time it was conveyed to Anthony B. Toomer. The other lands purchased by Henry Toomer after making his will ought to be valued at the time of his death.
Cited: Dixon v. Coward, 57 N.C. 357.