#### Rebecca Wilson v. Hightower and others.

*1 > From Lincoln, J

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, Judge.

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 Hightower his executor, who qualified as such j 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 1752, 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 life-time, property of the value* of $74; that an inventory of this property was ma4« out, sworn to, and pre-*77sentcd to the executor. The petition charged, that the widow was provided for, and that the shares of She chil- . dren were more than their proportionate shares or their father’s estate j 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.

Taylor, Chief-Justice.

All the Defendants, in this case, claim the property under the null 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, (2 Murph.) Í 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 to him in the life-time of his father, is not the subject of distribution, when a claim is made for the personalty. As the act of 1766, requires, only, that property to be brought into hotchpot, which has been settled or advanced to the child, in the life-time of the parent, it necessárily 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 aiiirmed. As the' words of the act of 1784, by which the descent of lands *78is regulated, are not restricted to an act, in the life-time of the parent, a different construction has been made in * regard to the settlement of lands, but respecting which n0 qUCSti0n arises in this case.

Hall, Judge.

I was one of the Court that decided the case of Jones v. Jones — (2 Mur. 150.) I was in the minority ; but 1 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 life-time, 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, Judge, concurred.