
    JONATHAN WORTH, Adm’r. of JOHN McNEIL, Jr., and Adm’r. cum. tes. an. of JOHN McNEIL, Sr., against JAMES ATKINS and wife and others.
    
    Where a widow dissents from the will of her husband, she is entitled, in ascertaining her distributive share, to have advancements made to legatees under the will estimated as a part of her husband's estate, though as between themselves, there being but a partial intestacy, such advancements are not subject to be brought into hotchpot against such legatees.
    Where a testator in his will provided a support for his widow and children by giving them a residence on his farm, and the issue and profits thereof, and the use of slaves, stock, &c., for a certain period — which arrangement was broken up by the widow’s dissent from the will, it was Held that the children were entitled to compensation out of the testator’s estate for the loss of these benefits.
    Gause removed from the Court of Equity of Randolph County.
    John McNeil, Sr., of Cumberland, (now Harnett,) county, died in the year 1850, having made his last will and testament, and appointed his son, John McNeil, Jr., his executor. He, having undertaken the trust, and acted therein, died intestate in 1857, and the plaintiff, Worth, became his administrator. The latter also took letters of administration debonis non, with the will annexed, on the estate of John McNeil, Sr.
    The bill is filed by the plaintiff, pi-aying the advice and direction of the Court, upon several questions growing out of the will of John McNeil, Sr., the portions of which, material to these questions, are as follows :
    
      “I give my son John my plantation, on Cape Fear River, and McKay’s Creek, &c. ' ■
    “I give to my son Martin, all the land on Cape Fear River, known as the Bird place, and all the land on the other side of the river, called the McAllister and Banks land, including ferry.
    “ I give and bequeath to Janet Ann, my daughter, the land on Cape Fear River, known as the McKinney land, on Hector's Creek.
    “The land I gave unto Martin, on Cape Fear, I reserve for the support of my wife and family, and to be managed by my executor, as I have heretofore done. The plantation.whereon I live, I wish carried on as before, by keeping the most suitable hands on it.
    “ My negroes not to be hired out or any of my lands rented.
    “ I desire that my wife have as many negroes to wait on her, as she may want; that is to say, as many of the women and girls as may be necessary — one boy and old George to take care of the stock.
    “I give and bequeath unto John McNeil, Jr., all the piney woods land, suitable for cultivation, between, <fec.
    “I give and bequeath unto my two sons, John and Martin? all my piney land that is not suitable for cultivation, and direct that Isaac and one other hand be kept at the mill, when necessary, and two others to cut and haul, and that half the profits go to the use of my family.
    “ I give and bequeath to Daniel Shaw and Henry Atkins, of Tennessee, 610 acres, in Hardin county, of that State.
    “I give unto my wife, my sons, John and Martin, and daughter, Janet Ann, all my money, consisting of cash, notes, and judgments, and that my son, Martin, be educated out of the same, with part of that and what may be spared on the farm.
    “ I leave to my wife and family, my stock of cattle, hogs, and sheep, household and kitchen furniture, and reserving as many of the mules, in season of hauling logs, for that purpose.
    “I desire little Grace to be sold, and the money tobe given .to my wife, but let her be sold out of the State.
    
      
      <(1 give and bequeath to Janet Ann, 90 acres on the waters of Neil’s Creek.
    “I give and bequeath to Janet Ann, $1,630 due from Kenneth Murchison, in notes.
    ■ “I give and bequeath to my son John ten head of cattle.
    I do hereby nominate,” &c.
    ■ Upon the death of the testator, his will was proved in common form, and John, the younger, qualified, and entered upon the charge of executing the will, but subsequently, at the instance of Mrs. Shaw, and Atkins, and wife, the probate was set aside, and a reprobate ordered, whereupon an issue was made up contesting the validity of the will, which pended for several years, during which time John McNeil, the youngerj was the administrator,pendente lite, and being advised, as he says, that there was, no doubt, as to the establishment of the will, he proceeded, for two years, to act in conformity with its provisions, but the contest lasting longer than he expected, he proceeded to hire out the slaves, and sell the perishable property. At length the will was established by the finding of a jury, and the widow of John McNeil, Sr., dissented therefrom, and took her year’s provision and dower. At. the time of this dissent, the family consisted of the widow, and her two children, Martin and Janet Ann, the former about lí, and the other about 18 years of age; these were the children of a second marriage. John, the younger, lived within less than a mile of his father, their residences being in thepiney woods', established mostly on account of the healthiness of the situation. Flora, a daughter of a former marriage, intermarried with James II. Atkins, many years ago, and settled in Tennessee, where they now reside. Upon the marriage of Flora, her father gave them several slaves, who have now increased much in number and value. These slaves were taken to Tennessee, and were in the possession of Atkins and wife, when the will was made, and when the testator died. One of the questions made by the administrator is, whether Atkins is entitled to hold these slaves without accounting with the estate,
    
      Sarah, another .daughter by the former marriage, became the wife of Daniel Shaw, and they also removed to-Tennessee, many years ago, where he died before the death of the testator. Previously to his removing, the testator gave him arid his wife, by bill of sale, a number of slaves, which, also, have greatly increased in number and value, and another question is, whether his representative has to account for these slaves 'to the administrator of John McNeil, Sr.
    To John McNeil, Jr., who was also born of the former marriage, were also given slaves, by deed, and as to these a ‘similar question is made.
    The bill states that on the dissent of the widow, the family arrangement, intended by the will, was broken up, and the plantations were not any longer managed for the support of herself and children.
    Another question growing out of this state of things is, what is to be done with the stock, farming utensils, household furniture, &c.; and whether Martin and Janet are not entitled to some recompense for the loss of the benefits this arrangement afforded ; also, how is the charge upon the products of die farm, for Martin’s education, to be made up.
    Another question is, by what rule is the widow to take her share, and whether the advancements to the three older children are to be taken into the account in ascertaining it. Out of what fund is her share to be paid, and whether she is entitled to a part of the accumulations to the estate since her husband’s death, arising from the hire of slaves, and the interest of monejn
    The defendants all answered, admitting the allegations of the bill, but, severally, insisting upon the conclusions favoring their interests in the questions propounded by the plaintiffs.
    
      B. F. Moore, for the plaintiff-
    
      Mimly, MoRae and F. G. Haywood, for the defendants.
   Pearson, C. J.

1st. The effect of the widow’s diásent, Was to defeat the purpose of the testator of keeping up the family establishment at the home place, and having the plantation on Cape Fear, which is devised to Martin, managed by the executor for the support of his wife and family, and the education of Martin, consequently the provisions made in reference to that purpose do not take effect, and the property, to-wit: the slaves, stock, farming utensils, household furniture, &c., fall into the undisposed of residue. Martin is entitled to the profits of the plantation; but loses the benefit of a charge upon the common fund for his education, and, in like manner, Janet loses the being supported as one of the family, •but will be compensated by having the profits of her portion of the estate in severalty.

In stating the account, John McNeil, Jr., will only be charged with the profits received during the two _years that he managed the farm, and Martin will be credited for the rent of his land.

2d. The widow is entitled to a child's part of the estate, and the amount will be ascertained in the same way as if her husband had died intestate, for, in contemplation of law, ho died intestate as to her. These principles are so well settled that it is not worth while to discuss them. Headen v. Headen, 7 Ired. Eq. 179; Husted v. Husted, Busbee’s Eq. 79.

' It follows that she is entitled to the benefit of the slaves, and other articles of personal property, given to John Mc-Neill, Shaw and Atkins, by the testator in his lifetime, to bo valued as advancements at the time of the several gifts. Tho amount to which she is entitled, when thus ascertained, will be paid out of the undisposed of residue, in which will be included the one-fourth part of what the testatorterms“all my money, consisting of cash, notes and judgments,” and also Grace and her increase at their present value. In stating the account, the widow will be entitled to a ratable part of the interest which has accrued upon the “ money fund,” and of the hires and profits of the slaves, and will be charged with the hires of such as were put into her possession.

3d. The division among the children will be made upon a .different principle, for, as to them, there is a will, and nota case of intestacy ; it follows that advancements are not to -be accounted for; this applies to the slaves given to John Mc-Neill and Shaw, for they have bills of sale; but it is otherwise in respect to the slaves given to Atkins. The gift was made in this State, and being by parol was void under our statute, and is not confirmed as an advancement, although the donor died without resuming the possession, and without making any specific disposition of the slaves in his will; still, it cannot be an advancement, because there is not a case of intestacy. The result seems hard; but, upon well settled principles of law, these slaves and their increase constitute a part of the estate of the testator, and Atkins is chargeable with their value at this time. Such cases are suggestive of a necessity for legislative interference.

Per Curiam, Decree for account.  