
    COURT OF APPEALS, JUNE TERM, 1822.'
    Warfield vs. Warfield, et al.
    
    on a petition pmentotimof a tate, n» a pa«ition ofliis lands. a« chancellor ’ decreed, that -parti* Jjiade-houhisd^ '¡if advancement to the5’ reibSénta, to Vied by the vaneed.^. against «pon him to bring such advancement into hotchpot. By fn\'heeíp-n-tbconf didhe vetbse'to^do thathehadarigSt commissionerstbe vS?ión?ke The (V-rérthe1 answer to abr?ng0tVn the and den™rythe Se'™ihe°ian<is ©f which the meesfate died seized, among thp other Eepyesuntatiyes,.^ ©xchulmp; II R% w. From this decree he appealed, appeaunthesngcourt'of *apifeais St ouKhtmtonbe hriág u“qu«t¡dñ lufiOierba rdT'by cimSioT stumd ,vasmisconceived^ amlpraj-ed leave. to amend it, to elect to hvinf? advancmenf hat Swaaccment *«* the time li - receiv©d it; winch was refused by the for chancellor. a p?mS0”iovinB cxecuted“ethean“ cdamdnc”nfim«i that' decree h.'°k! Ja-iaS, Sun have ’been - pet-minted to amend ibathe'wasVnut! led to make his mueírema!» «£ altered, and leave be given to H. N. w. to amend ins answer as prayed; and when su ¡í™0ya¡aJaofnt)°£ tol1 s"™ ”? vaucement at the time when it was* so given; and if it wa» of less value than the equal proportion of if# & W in the whole real estate, then the parties,amouK (■,''“nlw)!ilü (yat0p‘ii. sc¿fw. ),“y‘ass“m ¡¡’¡“¿, “ iüás“" SSKow already made*108
    
      Appear.from the Court of Chancery., It appears by the record that at September term 18.13,. the seven children of Doctor C. A. Warfield, by their petition to the chancellor, , , ’ prayed that a commission might issue to divide, them the real estate of the deceased. The petition stated * the death of Doctor Warfield, and that the petitioners.were his heirs. On the same day the chancellor passed a decree for dividing the lands into seven equal parts; that is, among all the children, and a commission issued accordih-gly. Afterwards a letter from the commissioners t<A Richard Snowden, who bad .married one of the daughters, of Doctor Warfield, was filed, in which they decline executing the commission,, and assign as their reasons, that they were directed to divide into seven equal parts the land only of which Doctor Warfield died seized, without, any mention of the lands deeded to Henry R. Warfield,. and. Samuel Thomas, (who had married one of the daughters.) ' 1 \ ’ 0 ' which if divided without those lands being taken in, would, n0* efí*ec^ Ike object tlie parties had in view. They thereiore recommended an alteration of the commission, &c. Whereupon the chancellor passed an order,, saying the decree could not be altered, and suggested another mode. of proceeding, viz,. That if the persons advanced state. their agVeement, and join in a petition with the other par-, ties, a commission might be framed accordingly, otherwise the- parties not advanced might petition, making the others. defendants, and calling on them to make the election: and . . *1,1 _ that the petition might also pray that the former decree. * 0 1 J , should be set aside, In January 1814, the bill, m the case court, was filed against Henry R. and now before the Touisa Warfield, by the rest of the children. This bill, Staies the death of Doctor Warfield, intestate; that he left seven children; that he conveyed certain lands to Samud Thomas, one of the complainants, who married one of his. daughters, and certain other lands to ílenry R. one of the, defendants; that these conveyances were made as advancenients; that Samuel Thomas is willing to bring his part . 7 , ,. J rr -rj i ¶ , ° . 1 hotchpot: that Henry it. had agreed at one time to . . •a ° , °rril§ Par^ in^Q hotchpot, and with thatviewthe petition kirst mentioned had been prepared and agreed to by all the. and the business entrusted to-him as counsel. Q]}ildren v Tke kill also states the proceedings, on the first petition; tkat the complainants were advised that no commission to divide could issue until Henry R, should make his election whether to bring his land into hotchpot or not. The bill prays that no further proceedings may be had on. the former petition; that the decree may be set aside, and the petition dismissed. It then proceeds to state, that the defendants .... , ’ kave re‘use“ to j0111 ln “le second application; that Henry R, has refused to make his election, and prays that he maJ” ke compelled to make his election, and that commiss^on 113‘U’ issue to. diyide the land into seven equal parts, if commission issued, testimony was taken under it and re turned, and the cause submitted to the chancellor. he elects to come in, and into six if he refuses. The anawer of Lovisct Warfield is not material to the point in dispute. The answer of Henry II. Warfield admits the proceedings on the former petition; he thinks it was the 1 ® , . proper mode oi proceeding, and assigns his reasons; but *" 1 r ° ° does not elect to bring m the part conveyed to him, and does not refuse to bring it in, but insists that he has a right to elect after the commissioners make their valuation.. A
    Kilty, Chancellor, (December term 1816.) The man, per proposed by the answer of the defendant, II. II. War-field, of making the partition and election, is not, in my opinion, sucli as he is entitled to; and considering the claim of his right thus set up as an election not to bring the conveyed to him.into hotchpot, it is adjudged proper to divide the estate amongst the other heirs, including therein the part conveyed to S, Thomas—Decreed, that" the defendant, II II Warfield, be precluded from all participation in or share of the real estate of C. A. Ifarfiield, deceased, in the proceedings mentioned; and that the real estate of C. A. W'arfield, deceased, of which lie died seized, including the land conveyed by him to the complainant, (S'. Thomas, be divided into six parts, and that commission issue, &c. From which decree the defendants appealed-to this court; and at June term 1818, the cause was argued before Buchanan, Johnson, Martin, and Dorsey, J,
    
      Taney, and Winder, for the appellants,
    contended, that the chancellor ought not to have passed the last decree while liis former decree was in force, and the cause still pending on the former petition. They cited 2 Madd. Chan, 856, 357, 408- Cooper’s Plead. 88, 269, 272; and Hollingsworth et ux vs, MlDonald et al. in this court, at December term 1807,
    
      Pinkney and Magnider, for the appellees,
    contended, that the first was not a decree to be enrolled, but ivas merely an order. They cited Cooper’s Plead. 266,268, 2 Harr, Chan. 327. 2 Aik. 383,
    The appellants’ counsel dismissed the appeal, on the suggestion of the court that an amendment to the proceedings plight be had in the court of chancery, so as to bring th-o true and real point in controversy fully before them, as coni nected with the question as to the period at which the va». Ration of the advancement to H. JR. Warfield was to be; made.
    
      IT. R. Warfield afterwards,
    in July 1818, by his peti-. tion to the chancellor, states, that by the decree ofDecember 1816, his answer is considered ‘‘as an election not to bring the part of his late father’s estate, as conveyed to him, into hotchpot,” and therefore he is by the decree precluded from all participation in the real estate of his father. That this view of his answer is one which he was. mot aware could be taken of it, for he always was ready, and'now is ready and desirous to bring his said part into hotchpot, claiming to bring the same in at the value if was. when conveyed to him. He therefore prayed the chancel-, lor to permit him to answer further,.and tq state, that he does elect to bring into hotchpot his advancement received from his father at tjie value of the said advancement atth.e. time he received it. That he had dismissed the appeal, which he prayed from the interlocutory decree, and,there had not been any return of the coinmission, to make partir tion, issued under that decree, &c..
    Kilty, Chancellor, (December term ,1818.) A petition/ Vas filed on the 1st of July 1818, by H. 11. WarJ.eld, one. of the defendants, for permission to answer further in the cause, and to state, that he does elect to bring into hotchpot his advancement in the manner therein mentioned. Which petition came on to be heard at the present term, and was argued by counsel on each side. It appears, from, the proceedings, that a decree was passed at December, terra 1816, for a division of the real estate of C. Jd. War-field, deceased, into six parts, excluding the defendant II. JR. Warfield, for the reasons therein assigned.. During the same term two depositions were filed on behalf of the defendant, and admitted by the opposite counsel to be received in, evidence. They related tff. the improved value of the land conveyed to him by C. JI. Warfield in 1797; and on motion and on hearing, the court decided that the decree should remain unaltered. An appeal was made from the-decree to the court of appeals,, which the petitioner states, that lie dismissed, as was admitted in the course of the argument. On the dismissal of the appeal, a commission isjsSBed in pursuance of the decree, which has been executed and returned since the filing of the present petition, and no exceptions have been made thereto, except so far as the petition may be so considered. On that part of the petition, for permission to put in an amended answer, it is to be observed, that the practice of the court is less strict than it is in England, and that a discretionary power is exercised to meet the merits of the case, whenever it can be 'considered open or liable to be opened. In the case cited, of Weems and O'JReilh/, and in that of Boyce and Gassaway, I did not discover any certain rule to be drawn front the English practice; But I incline to the opinion, that the interlocutory decree in this casé might be opened, if the answer preferred was such as the merits of the case required. The permission might, however, have been subjected to the terms respecting the intermediate costs, so ás to include those of the execution of the commission; But I am of opinion, that the kind of answer proposed in the petition is not such as to meet the merits of the case, hr to call for the interference of the court, more especially áfter the declaration contained in the decree, and the intimation of the sentiments of the court of appeals. The answer proposed in the petition, is somewhat different from the one filed before by the same defendant, but does not appear to be a proper answer to the petition under the act to direct descents. Tt is an election made subject to á proviso or condition, and necessarily implies a refusal to élect, without a compliance on the part of the court with that condition, according to the maxim, that “expressio unins est exclusio alteriusI do not recollect any case ill this court, in which the fifth section of the act to direct descents, 1786, ch\ 45, which provides “that any qhild or children of the intestate, or their issue, having received from the intestate any real estate by way of advancement^ ihay elect to come into partition with the other parceners, on bringing such advancement into hotchpot with the estate' descended; but such child or children, or their issue, shall not be entitled to claim a share by descent, without-bringing such advancement into the common stock, or hotchpot, if there be any child or children unprovided for,” was acted on, except that of Sprigg and Sprigg, cited in the argument, and I shall therefore state my views of that part ef the law connected with the common law. In England, 
      parceners were only by common law or by custom. By common law they could not be such otherwise than by descent. And only females could, in the first instance, be parcener's, (making together but one heir,) becáúsé in case of a son the land descended to him alone. The act of. 1786, ch. 46, was passéd in order tó change the course of descent, and by directing it to bé to the children equally, it in effect made them all parceners, and they áre so called in the jrflh section-. It is to be presumed that the framters of the act were familiar with the law as to land received in irank-marriage* and that in 'creating parceners of a new kind or by statute* they saw the necessity of permitting such of the co-heirs, as might havé received any real estate by way of advancement* to come into partition, on bringing such advancement into hotchpot, and of excluding them from a share by dissent if they did not bring such advancement into the common stock or hotchpot. Therefore, although gifts in frank-marriage had fallen into disusé in Érigland, ás stated by Blackslo'oc, yet in a provision for the division of lands, thé formér doctrines, applicable to these gifts and coparcenery of land, ought to be used in the Construction of this act, and not those (where they differ,) applicable to the British statutes, and our own acts, for the distribution of the personal estates of intestates. It is láid down by Lord Coke, that when thé lands are put in hotchpot* and the valué of each are known* the donéés shall retain the land given in frank-marriage, and shall have so much of that ih fee descended, as will* together with land given in frank-mafriáge, niake their share equal to that of the other parcener. It is also laid ¡down by the same' author* that it is clear that the valué shall be according as it was at the time of the partition, assigning his reasons therefor* According to this authority, the condition on which the defendant’s election is, made to depend, is not such as the law entitles him to. But supposing it doubtful, or that the valué ought to be according as it was át tlie time of the gift or advancement, yet it is á point on which the court is not obliged to decide at thé present state of the proceedings. The provisions of thé Jiftii section of the act are fot* the benefit, of a co-heir who liiay have received real estate by way of advancement of less value than any one of the parts descending to the other heirs,' They cannot force him, but he may elect to chine into partition with the other parceners, on bringing such advancement into hotchpot, &c. And here I have to observe, that I do not comprehend the distinction made between the words “advancement and estate,” in the answer filed, and in the argument of the defendant. I am off opiniou, that the person so disposed, must elect to come into partition, &c. in the words of the act, or to the samé éffect, leaving for further inquiry and decision the manner of proceeding as to the issuing of the commission, and the manner of valuing and dividing, ivhich are open to exception, and of course to the decision of the court thereon. The condition required in the answer filed, and in the one proposed to be filed, would amount to a negotiatioii with the court, which is not the usual mode of proceeding. And therefore, in making the decree in 1816, as the condition could not be complied with by the court, I considered it as an election not to bring the. part conveyed into hotchpot, or as it might have been moré accurately expressed, as not making ah election to bring it in. Although the Condition is now varied in terms, it amounts in substance nearly to the sanie thing. And the defendant comes under that part of the law which declares that such persons shall not be entitled to claim a share by descent, without bringing such advancement into hotchpot. The ground of my refusal to grant the petition is, that if an answer, such as is proposed therein to be made, was regularly filed in the cause, I should not consider it as an election to come into partition, and' should decree on it as I did on the first answer. It was urged in argument, that the defendant would be barred of relief if the amendment was not allowed, on which the main question could be fairly brought out and finally settled. This remark would have weight if the amendment was such as ought tobe offered or ought to be received, but as it is, the consequence, whatever it may be,'will be brought oh by the defendant himself. He has had full time for consideration, and has had the opinion or intimation of the court of appeals. He has availed himself of Ms own professional knowledge, in addition to the advice of Ms counsel, and in lieu of one condition or requisition, he has only substituted another, liable to the same objection. The commission has been executed and returned, and an allotment of thé six parts agreed to by the parties, excepting the defendant, H. JR. Warfiüdj and the permission to put in the answer proposed therein riot being granted, ;a final decree will be made'. Decreed, that the return óf the 'commissioners, and the division by them made, be and the same is hereby ratified and confirmed. Also decreed, that Richard Sñoibdén shall hold in severalty in right of his wife Eliza, who is deceased, and not jointly with the other parties to this shit-, all that part of the said real estate distinguished on thé plot* arid the return of the commissioners, by the number oti'é, fréé, cléár* anddistehárged from all claim of the other parties to this suit. And, &c. &c. Prom this decree the defendánt H. R. Warfield appealed to this court. ,
    The cause was argued at the last Juné term, béforé Buchanan, Eáríie, Johnson, Martin* and Dorset, J.
    
      Taney and Winder, for the appellant
    1. The appellant ivas not bound to bring in the land itself given to him by his father* but the value of it, such as it was at the time he received it 2. He was entitled to make his election ih that form, and was not bound to make his election in general terms, 3. The chancellor ferred in excluding the appellant from the partition on his answer, in which he claimed the right to decide at a future time/ 4. The chancellor ought to have allowed the appellant to amend his answer as he proposed in his petition. On the first point, they1 referred to the act of 1786, ch. 45, s. 5. 3 Bac. Ab. tit. Executors and Administrators* (K) 76. Kircudbright vs. Kircudbright, 8 Fes. 51. 2 Blk. Com. 190. On the fourth point they referred to Rbycé vs. Cassaway, December 1818, and Weems vs. O'Reilly, October 1819.
    
      Pinkney and Magruder, for the appellees.
    Í. The appellant, by not electing whether or not he' would bring his advancement into hotchpot, thereby refused to elect. 2. The land itself ought to have been brought inj and if not, then the Value thereof at the time of the- partition. They cited 3 Jacobs1L. D. tit. hotchpot. Co. Litt. s, 273. The' acts of 1715, ch. 39, s. 4,5; 1798, ch. 101, sub ch. 11,. s. 6. Toller on Executors, 176. They also contended that no appeal would lie from the refusal of the chancellor to permita defendant to amend his answer.
    
      Curia adv. vult.
    
   The Court-

at this term, being of opinion- that there-was. manifest error in the- decree of the chancellor in re-fusing to allow the defendant-,, /X R. Warfield, to amend, his answer agreeably to the-prayer of his petition filed in the cause for that purpose, and that he-was entitled to make.his election in the manner set fprth. in his petition—Decreed, that the decree of the chancellor be reversed, with. costs; and that-the partition in the proceedings .mentioned be and remain unaltered, and that;the. chancellor, pass an order giving leave to the, said II. R. Warfield to amend his answer, according . to the- prayer of his. said..getition; and, upon the.filing of the said amended answer, the.chancellor is directed.to pass an order directing proof to.be.taken of the value of the lands given. in. advancement to.¿he .said; II. R. Warfield, at the time when the same were .so,given;, and if upon such proof the land so advanced - shall ap, pear to have been of less value, than,the equal proportion of the said ¿X R. Warfield in the whole real . estate,. then,' that-the parties, among whom said partition was.made,. or-their legal representatives or assigns, shall be decreed to-, pay severally, to the said H.R. Warfield, such sum or sums of. money, as shall be sufficient to-.make his share of the said estate equal in value to one full seventh'part of tli,e.said, real, estate*. at- the time of the,, valuation already made by-the commissioner8’ That if, upon such .partition, so,made.as aforesaid, S. Thqmqs, hath received any,addition to ,the. advancement by, the..said .O. Jl. Warfield, inhis life-time, as mentioned in Ihe prpceeílings, then that the said S.-Thpmas pay to,the,said,.-XX R.„Wp/fiield,„such suiq ofrmoney as will be his just proportion,..ip reference to, such addition,so received by.him., And. that .the chancellor do, frqm time to time, pasg. all the necessary orde.rs, direction?. and ¡decrees, for carrying thisdecrec intp,,execution,,

Johnsoíí.j J. dissented.

DECREE REVERSED,1 &C».  