#### The heirs of A. Toomer, versus The heirs of Henry Toomer.

'T'HIS was a petition for the division of lands, under the act ot 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 questions made by the petition were two. First j whether the lands so advanced were to be brought into hotch-pot. 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 ai the time when the division shall be made.

As to the first, question, it was argued for the plaintiffs by Hay•wood, that the words providing for hotch-pot, in the act concerning the descent of real estates, 1781, 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 sharers. — • But hotch-pot 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. 3 P. W. 126, was thus : A by will bequeaths his estate in equal shares to his severa children; one dies in his lifetime, then the testator dies; the executors are decreed to be trustees; and as to the lapsed legacy, the question was, how a division should be made amongst the children ; and whether four of them who had been advanced by the father in his life-time should bring into hotch-pot: And jt was detetmined they should not; because this isa partial, not a total intestacy; and the act speaks of hotch-pot only in the case of the latter. Also, 2 P. W. 356, shews that hotch-pot does not take place, unless where the case comes directly within the act. An advancement by a mother who after dies intestate, shall not be brought into hotch-pot, because the act of distributions speaks of a division to be made amongst wife and children ; and coase-quertly relates only to the estates of such persons as could have a wife and children. To apply these cases to the present, the cast; now before the court is not one mentioned in the act, m *369which hotch-pot is to be used ; the case mentioned in the act is, where one .shall dit 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 hotch-pot; it has often been decided in th.s 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 diiiitr from the personalty in this respect.

E contras it was argued by Jocelyn and Gasten,

tli.it hotch-pot existed at common law amongst coparceners ; Co. LUt, ITQj and therefore, in cac.ec of division under the act, supposing hotch-pot not to be expressly provided for, it should nevertheless take place. But in truth the act operates upon every (.-ase where a part of the realty is left undisposed of| for then lie is intccmte as to that part5 mid all the same rules apply as in case of any o-titer intestacy. Suppose a man makes his will of personalty, saying nothing of his realty; if it be not a c?ce within the act, what goes with his lands? and if within the art for the purpose of division and descent, so is it also for the purpose of equality of division, which cannot be effected without hotch-pot. The c.ise cited from 3 P. W. is where the advancement was before the will, and there hotch-pot would hate been improper; because the parent by making a will and giving more to the advast-c,:í3 children than he had already advanced, manifested bis intent to be, that they should have both the advancement and provision by will. In case of advancement after the will, the law perhaps would be otherwise. In that case also, there was not as intestacy as to the lapsed legacy; for it vested in the executor this whole personal estate vested in hint, and therefore no p-rt could be under the government of the act of distributions. But in the case before us the lands in question did not vest in any one appointed by the will of the owner, and therefore he did die intestate as to theta ; and they descend, not as formerly to the eldest son, but by force of the act, to all his children, and under the restrictions provided by it. As to the valuation, it should be as the advancement was worth at the time when the divisiosi shall be made. The rule for valuing real advancements, shout'd differ from that of valuing personals, because personal estate is ftactuating and variable; that of the realty, permanent and stationary. A young Negro of small value may be given in advancement, and before the division, may be of great value: An old one may be advanced, and before the time of division, ¿way bs of no value at all. If in the case of realty, a valuation tv ere to be made at any other,period than that"of the division, it might be, that a lor, value one dollar per acre, or £ 200, might be, at the time of division, worth £ 1000, or 5 dollars per acre. If valued wt iba tiras of the gift; is such case tkc advanced child would *370have a share with the other children, and £ 800 besides ; aqua-lity, the object of the act would be destroyed. As to improve* ments made by the advanced child, these should be deducted, and the value at the time of the division, exclusive of the improvements charged to him. If the advanced child has sold fus advancement, he either will not be admitted into a division of the surplus ; or if admitted, will be charged with the value he received, or that it was worth when sold, without the improvements. Ii is probable, however, he would not be admitted into a division ; for nothing descends to an advanced child until he brings his advancement into the common stock; and this he cannot do where the lands are not his at the time of the division. Co. LUf. 176, speaks of bringing the land itself into hotch-pot j and expressly says, 179, it shall be valued as worth at the time of the division.

Haywood, e contra.

Had the act omitted the provision for hotch-pot, would Coke’s chapter of parceners have been a sufficient provision for its introduction i If not, why talk of the law of cooarceners ? Why say it will take place in the case of a partial intestacy where it is not provided for, when it would not, in case of a total intestacy, had it not been provided for. The mode of valuation in the case of a gift in Frankmarriage, in Co. Litt. 179, if it be not owing to the nature of such gift, is certainly without any reasonable foundation; he does not make an allowance for Improvements made by the donee. Whatever may be the law in the case of parceners, we are not bound to adopt the same rule of valuation under this act. — We had better resort to the same rule as used in other similar cases ; such for instance as arise under the act of distributions. We ought not to make a difference between the valuation of real and personal advancements ; unless for some urgent reason requiring a distinction. Reasons indeed for that difference have been offered. Personal property, it is said is fluctuating — -real property is permanent.— I answer, the case now before the court, has come before it, because of the great increase in value of the property advanced. — ■ Wilmington was burnt down a few years past; the land advanced, before of no value, was found to contain better clay for bricks, than could be found any where else ; in consequence of such discovery its value rapidly increased. If a young Negro may grow up and his value increase, so may land, as in our case. If an old Negro may become older and of less value, so may a tobacco plantation, which the parent advances, wear out by cultivation j or piae lands where the trees are destroyed by getting turpentine, or cypress lands, which become of less value for every Iren that ie cut down and made into shingles. There is no reason for a difference. But if we had no guide on similar and prior determinations, we might readily perceive that the assess-*371ruení of value ought not to be made according to what the pro» petty was worth at the time of division. Suppose lands adv.inced, to be worth at the time of the gift, £ 1000; but before the division, by burning or decay of houses, fences or orchards, or by cutting fuel from off lands near the town, they become of £ ICO value ; if the advanced child account for £ ICO only i t the division, then he has received £ 900 more than the other children: Or if he has cut down the timber and sold it for fuel, he has actually had the benefit of this £ 900. So aleo in the case of the tobacco plantation worn out bj cultivation, he has actually received the £ 900 more than the other children. Will the court take all circumstances into consideration in order to effect equality, then they will make the advanced child account for the timber cut down, or the rents of the tobacco land exhausted : — ■ If so, the child advanced is not the owner cf the advanced property, but a lessee, accountable for the psoíiís he receives. And how will v« get at the circumstances which will t rafale us to attain this desired equality ? Must the advanced child prove the taxes he has paid, the sums expended in law suits fur defeats of his title, those he has given lor extinguishing adveise claims, and whether it was prudent or not, in his circumstances, to pay for the extinguishment, end whether the sunt paid was reasoru.LL l Must he prove that the bouses were not burnt down by his neglect, or want of due care 5 that they were not decaj eel, nor tbs fences nor orchard», for want of due care ? nor the rice lands grown up, nor the ditches filled up for want of care ? Must he prove that a sale was necossa; y, considering his circumstances, and unavoidable, and that he was not to blame for the existence of such circumstances ? If the doctrine advanced on the other side, be correct, the children are endcled to the increase of value; and if so, they are entitled to that 'kcreaee against the advanced child who has sold ; for their sight to the increased value, can never depend upon his selling cr act selling, especially if he sells voluntarily.

If all such circumstances are to be arlvested to, a division will hardly ever take place until tie estate is ruined by expenses, litigation and delay. Children will never know their righto till a division is actually made, nor any lawyer be able to advise them. Fixing the valuation at the time of the death of the ai.eestoi, is as much productive of inequality as fixing at dr 2 iliac- oí division: for lands of small value at the dm. of his death, may by discovery of mines or other advantages, riy-s tj ten times the value before the division, as well as between the gift and the death of the testator; and lands of ^.iOCO value at his death, may by accident, become of £. ICO vi'us by thciime of division. It is bast to consider the advanced child as owner iroin the time of the gift — “if any loss happens by a ¿iiainuúua of value, it will *372be his alone, and not the loss of his brothers and sisters equally with him: He,like other owners;, will be interested in preserving his property ; and like other owners, if an increase happens, Ire will be entitled to the benefit of it: he will be accountable for the value, which will be fixed and invariable, and not dependent upon a variation of circumstances which will continually change. — rlf a father has ,£.200 which he gives to his son to. purchase land, and he purenases the same, and it rises to ¿C.1000 value before the division, he will account only for £• 200, because the money has not encreased ; but if the father pat s £. 200 himself to the debtor, and gives the land to his son, he will, ac-coi ding to what is now contended for, be accountable for £. 1000» The circumstance of purchasing himself, or giving the money to the son to purchase, can never make such a substantial difference, if the rule of valuation be fixed on correct principles. That immaterial circumstance will make no difference at all, if the son be bound for the value he receives; for then, whether he receives in money or land, he will be chargeable precisely for the amount.

Cmúa edvesari.

And at the end of the term,

Lode, Judge,

delivered his opinion, and said the lands advanced must be brought into computation and valued as worth at the time of the grift; the lands to be divided, must be valued as worth at the» time of the ancestor’s death»