
    *Williams v. Stonestreet, &c.
    December, 1825.
    Advancements — Bringing into Hotchpot. — By the act of 1785, advancements of real estate are only to be brought Into hotchpot with real estate descended: and personal advancements, only with personal estate. But the law has been changed, in this respect, by the revisal of 1819.
    Same — Rents and Profits oi Land-Bringing into Hotch-pot. — Neither rents nor profits of land, given as an advancement, ought to be brought into hotch-pot. But where a father shall permit a child to rent out his land and to receive tile rents thereof for his or her use, such rents shall be brought into hotchpot as an advancement of personal estate.
    Decedent’s Estate — Claims against Services Rendered by Son-in-Law. — A charge made by a son-in-law. for nursing his father-in-law. in his last illness, where there was no contract, express or implied, ought not to be allowed.
    Appeal from the Staunton Chancery Court.
    Elisha Williams died intestate, leaving a valuable estate, real and personal, and several children and grand children, of whom his daughter Mary Stonestreet was one. His son Hazel Williams, became his administrator. The intestate had made advances, in his life-time, to his several children, of real and personal estate.
    . Stonestreet and wife, filed their bill against the several heirs and distributees of Elisha Williams, and the administrator, calling upon the latter for an account of his administration, and requiring the former to bring into account their respective advancements, real and personal, in order to make a full and fair division of the whole estate.
    . The defendants answered; and the Chancellor referred the cause to a commissioner, to take an account of the adváncements of real and personal estate,' made by Elisha Williams, in his life-time, to his children; and also to take an account of the administration of the estate of the said Elisha, &c.
    Depositions were taken, by which' it appeared, that the intestate had given to Mrs. Stonestreet, a tract of land in Frederick county, without a conveyance, which she and her husband occupied for some years; and afterwards Elisha Williams took that land back, and gave his daughter a tract of land in Bath county, in lieu of it, to ..which she *and her family removed; and that they continued, notwithstanding the exchange, to receive the rents for the Frederick land, for three years, &c.
    The commissioner, made a report, to which the defendants excepted in the following particulars:
    1. For failing to charge the plaintiff with the rents received for the Frederick lands.
    2. For allowing the plaintiff any thing for his attentions to his father-in-law, the intestate, in his last illness, his services being, gratuitous.
    3. For refusing to give credit to Elisha B. Williams, for claims set up by him.
    4. For not allowing Elisha B. Williams compensation for superintending the business of the intestate, and making improvements on the Cole’s place. [The two last exceptions, not being particularly noticed by the Court, do not require any further explanation.]
    The Chancellor decreed that the report of the commissioner should be confirmed; and the defendant Elisha B. Williams appealed.
    Wickham, for the appellant.
    Johnson, for the appellees.
    December 6.
    
      
       Advancements. — See monographic note on “Advancements” appended to Watkins v. young, 31 Gratt. 84.
      Same — Valuation of. — In Kyle v. Conrad, 25 W. Va. 780, it is said: "Unless under peculiar circumstances, as when perhaps the advancement is a remainder (see Cheiu v. Murray), the rule is established in Virginia as well as elsewhere, that all advancements are to accounted for as of the value they bore when received, and that during the life of the intestate, rents, issues and profits should be charged against the heir or devisee. Beckwith v. Butler, 1 wash. 224: Hudson v. Hudson, 3 Rand. 120: Williams v. Stonestreet. 3 Band. 559; Christian v. Coleman. 3 Leigh 30; 'Knight v. Oliver. 12 Gratt. 33; Puryear v. Cabell. 24Gratt. 260."
    
    
      
       Decedent’s Estate— Claims against Services by Children of Decedent. — See on this subject, monographic note on "Debts of Decedents” appended to Shores v. Wares. 1 Rob. 1. The principal case is cited in Harshberger v. Alger, 31 Gratt. 66.
    
    
      
      Jmxm Co alter, absent.
    
   JUDGE CABELE,

delivered his opinion:

This case presents a question which, I .believe, has never before been made in this Court; whether, in bringing advancements into hotchpot, real estate is to be brought in with real only, and personal estate with personal. •

If I had not been informed that different Chancellors of the State have given opposite opinions upon this subject, I should have thought that the question admitted of no doubt whatever.

The act directing the course of descents, which passed in the year 1785, 13 Hen. Stat. at Large, 139, declares that J“where any of the children of the intestate, or their issue, shall have received from the intestate, in his life-time, any real estate by way. of advancement, and shall choose to come into partition with the other parceners, such advancement . shall be brought into hotchpot with the estate descended.”

The act concerning wills, the distribution of intestates’ estates, &c. directs, “that where any children of the intestate, or their issue, shall have received from the intestate, in his life-time, any personal estate, by way of advancement, and shall choose to • come into the distribution with the other persons entitled, such advancement shall be brought into hotchpot with the distributable surplus.” 13 Hen. Stat. at Large, 146.

Real advancements are to be brought into partition with “the estate descended;” terms applicable only to real estate; and personal advancements are to be brought into distribution, with the distributable surplus, terms applicable to personal estate only. I do not think the Legislature could have used stronger terms, to shew their intention to keep the two kinds of estate separate and distinct; that real estate was to be brought into hotchpot, only with real estate, and personal estate, only with personal. The law has been changed in this respect, by the late revisal; but the case under consideration occurred before the change, and must be regulated by the law as above laid down.

The appellant has taken various exceptions to the report of the commissioner.

1. As to the three years rent of the Frederick land, received by the appellees, after they ceased to occupy it. That land had been given to Mrs. Stonestreet, as an advancement, although no conveyance was made for it. So long as the land was held by the appellees, as an advancement, they ought not to be charged with the rents or profits. Beckwith v. Butler, 1 Wash. 234. But Elisha Williams, the father of Mrs. Stonestreet, took back that land, and *gave her in lieu thereof, other lands in the county of Bath. He, however, permitted Stonestreet to receive the rents of the Frederick land, for three years after the-exchange aforesaid, and after he had ceased to occupy it. 'These rents were certainly an advancement to Mrs. Stonestreet; but they cannot be regarded in any other character than as personal estate. The appellees ought, therefore, to- have been charged with them in the distribution of the personal estate; and in this particular, the decree is erroneous.

2. The charge by Stonestreet, for nursing his father-in-law, in his last illness, was properly rejected. There was no contract, express or implied; and considering the relation between the parties, the services were such that no compensation ought to have been expected.

As to the subjects of the other exceptions, T am of opinion, that there is not sufficient evidence to support them; and if there were, they ought not to be allowed to be set off against the advances made to the appellant. They would be debts for which he should sue as a creditor.

I am for reversing the decree, so far as relates to the three years rents of the Frederick land, and for affirming it in all other respects.

The other Judges concurred.  