
    Franklin Manning vs. Eli Manning and others.
    
      Will — Advancements—Slaves—Administration—Confederate Treasury Notes.
    
    The testator devised and bequeathed his estate to his ten children, by name, to bo equally divided between them, and then directed that such of them 11 as have received property from me will account to my estate for so much — Held, that such of the children as had received property from the testator were bound to account for the same as in cases of advancements, and upon the same principles.
    The testator’s will was executed in March, 1862, and he died soon after:— Held, that slaves which he had given to his children must bo accounted for as advanced, and that slaves which he owned at the time of his death must be treated in the distribution as part of his estate.
    For Confederate treasuiy notes invested in certificates for four per cent. Confederate bonds, and for balances due for Confederate treasury notes received during the time such notes were the only currency of the country, an executor held not liable. Per Lesesne, Oh.
    BEFORE LESESNE, OH., AT MARLBOROUGH, FEBRUARY, 1866.
    This case will be sufficiently understood from tbe Circuit decree, and tbe opinion delivered in the Court of Appeals. 'The Circuit decree is as follows:
    Lesesne, Oh. Mealy Manning, by bis will, dated March 26th, 1862, after directing his debts to be paid as soon as convenient, gave to bis wife, Mary, for life, a tract of land, seven slaves, and some other personal property, and directed that after her deafcb tbe same should be divided among bis “ legal beirs.” He gave the residue of his estate, real and .personal, to be equally divided among his ten children, Eli, Thomas J., Sarah Jane, (wife of David W. Bethea,) William L., James B., Franklin, (the plaintiff,) John, Holland, Houston, and Angenora, and willed that such of them as had received property from him should account to his estate for so much; and appointed his sons, Eli and Thomas J., executors.
    
    The testator died soon after, leaving a considerable estate, consisting of lands and negroes, stock, plantation implements, and choses in action, bacon, cotton and corn, and leaving his widow and the ten children above named surviving him. Thomas J. Manning, one of the executors, proved the will, and having administered the estate in part, died intestate on the 28th December, 1864. Eli Manning then qualified as executor, and nearly all the personal estate had been sold, and all the testator’s debts been paid, when this bill was filed, to wit, on the 19th October, 1865.
    William L. Manning, one of the children, died intestate in August, 1862, leaving a widow, Martha J. Manning, (who administered on his estate, and has since intermarried with H. M. Stackhouse,) and one child, Willie Jane Manning.
    The testator’s widow, Mary Manning, died intestate in September, 1863, never having received any of the property left to her. Thomas J. Manning left a widow, Ann M. Manning, (who administered on his estate,) and four children, viz.,, James H., Orletta Lawrence, Mary Jane, and Margaret Manning, who are all infants. Eour of the testator’s children, viz., John, Houston, Holland, and Angenora, are also infants. Several of the testator’s children had received property from him.
    The testator’s debts have been fully paid.
    The bill is filed by one of the testator’s children against the others that are living, and the representatives and heirs of the two who have died, for an account, distribution, and partition.
    The testator was the guardian of two infants, named Delaney J. and Mary A. Kinney, whose estate is mingled with his, and who are not parties to this proceeding.
    The cause was submitted to Chancellor Inglis, who, on the 19th January, 1866, made a decretal order in these words:
    “Upon hearing the pleadings in this case, it is ordered that the Commissioner do inquire and report which of the testator’s children received property from him before the execution of his will, the particulars of such property so received, by each, its condition at the time of advancement, and value at the testator’s death, regard being had to such condition as if then continuing; if the same or any part of such advanced portions consisted of negro slaves, whether all such slaves continued in the possession of the donees until practically freed by the authorities of the United States, or if not, which did not so continue; whether such so not continuing had died in the possession of the donees, and if so, whether before or after the testator’s death, and the value according to the above rule of valuation of such so dying, or whether they or any of them had been sold by the donees, and if so, at what prices, and at what times, and the value of such according to the same rule, or if not sold, had been exchanged for other property, or otherwise converted into pecuniary value in other forms, with the same particulars in that event; that he also inquire whether any of the negro slaves, of which the testator died possessed, were sold by the executors, and when and at what prices, and take an account of the hire of the negroes advanced to each legatee, between the death of the testator and the date of emancipation aforesaid. That the Commissioner do also take the accounts of the administration of the testator’s estate by the executors, Thomas J. Manning and Eli Manning severally, and their respective executions of the trusts of the will as such executors, and ascertain the balanoe due by each to the testator’s estate; and that in so doing he inquire and report how much of the assets were received by each in treasury notes of the Confederate States, the circumstances under which such receipts by them took place, and from what sources, and on what account, and at what times; and also which items of the payments charged by them were made in like currency, and what investments were made by each in securities of the Confederate States, and under what circumstances, and that on the whole case referred to him for inquiry he have leave to report any special matters. The rights of infants are involved in this case, and some of the questions submitted in the pleadings are too important, too new, and of too extensive application to be determined at Chambers, or indeed elsewhere, without argument. It is not intended in this order to express or intimate any opinion either way, but only to gather for the information of the judgment of the Chancellor who will hear the cause such facts as may by any possibility be regarded as entitled to affect such judgment. And because I think the questions need to be well examined and discussed, and the rights of the infant parties to be touched bjr them ought to be well guarded, it is ordered that Henry T. Moore, Esq., be appointed to represent the interests of the said infants in the argument of these questions on the Circuit, such appointment to continue further or not as the Circuit Chancellor shall judge proper. This order is made because the solicitor, whose name appears on the record as representing the infants, will be associated with the solicitor of the plaintiff’ the whole proceeding having been amicable.”
    In pursuance of the above order, the Commissioner, on the 8th February, 1866, reported as follows:
    
      “ The Commissioner, in obedience to an order in the above-stated case, respectfully reports: That he has heard evidence on all the matters submitted to him, and that he finds that Eli Manning received as advancements from his father, Mealy Manning, before the execution of his will, the negro slaves, Isaac, Charlotte, Edward, and Louisa, and that reference being had to their condition at the time of the advancement, their value at the testator’s death was two thousand and two hundred dollars, and that prior to the same period he received two hundred and sixty acres of land, twelve hundred dollars in money to be invested in land, one horse, two mules, six head of cattle, and two hundred bushels of corn, as other advancements, amounting in value to four thousand one bundred and eighty-five dollars, the aggregate value of all the advancements being six thousand three hundred and eighty-five dollars. And that Thomas J. Manning received from his said father, prior to the same period, the negro slaves May, Alph, Alice, Laney, and Dilley, and that reference being had to their condition as aforesaid, they were worth at the testator’s death two thousand three hundred and fifty dollars, and that, prior to the same period, he received three thousand dollars in money to be invested in land, one horse, two mules, two hundred bushels of corn, and six head of cattle, as advancements, amounting in value to three thousand five hundred and seventy-five dollars, the aggregate value of all the advancements being five thousand nine hundred and twenty-five dollars. And that Sarah J. Bethea, wife of David W. Bethea, received from her said father, prior to the same period, the negro slaves, Jim, Jinney, Mariah, and that reference being had to their condition as aforesaid, they were worth at the time of the testator’s death one thousand and nine hundred dollars, and that prior to the same period she received twenty-seven acres of land as another advancement, worth two hundred and seventy dollars, the aggregate value of the advancements being two thousand one hundred and seventy dollars. And that William L. Manning received from his said father, prior to the same period, the negro slaves Peg, Jack, Manda and Anne Jane, and that reference being had to their condition as aforesaid, they were worth at the time of the testator’s death two thousand three hundred and fifty dollars, and that prior to the same period he had received one thousand three hundred dollars in money to be invested • in land, one horse, two mules, two hundred bushels of corn, and six head of cattle, as other advancements, amounting in value to one thousand eight hundred and seventy-five dollars, the aggregate value of all the advancements being four thousand two hundred and twenty-five dollars. And that James B. Manning received from his said father, prior to the said period, tbe slaves Hector, Emanuel and Ann, and that reference being had to their condition as aforesaid, they were worth at the time of the testator’s death two thousand and three hundred dollars, and that prior to the same period he received two mules worth two hundred dollars, as an advancement, the aggregate value of all the advancements being two thousand five hundred dollars.
    “The Commissioner further reports that all of the parties respectively remained in possession of all the said negroes, not only up to the time of the testator’s death, but also up to the time they were emancipated by the government of the United States, except the slaves Alph, advanced to Thomas J. Manning, Jim, advanced to Mrs. S. J. Bethea, Jack, advanced to William L. Manning, all of which slaves left their owners with the army of General W. T. Sherman, about the 7th day of March, 1865.
    “ The Commissioner further reports that the hire of the negroes given to Eli Manning from the death of the testator up to the time they were freed as aforesaid, which the Commissioner has supposed to be the first day of May, A. D. 1865, is two hundred and sixty-three dollars. And that the hire of those given to Thomas J. Manning for the same period is two hundred and thirty-two dollars. And that the hire of those given to Sarah J. Bethea for the same period is three hundred and ten dollars. And that the hire of those given to William L. Manning for the same period is two hundred and thirty-two dollars. And that the hire of those given to James B. Manning for the same period is two hundred and ninety-four dollars.
    “ The Commissioner further reports that the said Thomas J. Manning and Eli Manning, as executors of the said will, did not sell any of the negro slaves belonging to the estate of their testator, and that the testator had at the time of his death forty-five negro slaves, worth, as inventory and appraisement shows, and as has been fully corroborated by other evidence, twenty-two thousand one hundred and fifty dollars. And that the five children to whom advancements in negroes had been made as above appears, had received in such property eleven thousand one hundred dollars, making an aggregate of thirty-three thousand two hundred and fifty dollars.
    “ The Commissioner further reports that he has audited the respective accounts of Thomas J. Manning and Eli Manning, executors, as will more fully appear by reference to exhibits A and B, herewith filed. That he finds that Thomas J. Manning, executor, had in his hands on the first day of February, A, D. 1866, seven thousand three hundred and eighty-five dollars and twenty-eight cents, which would be reduced by his commissions for paying it out to seventy-two hundred dollars and sixty-three cents, all of which is in Confederate treasury notes, except five thousand dollars in four per cent, bonds of the Confederate States, found after his death among his estate papers. That he finds that there was in the hands of Eli Manning, executor, at the same date, eleven thousand nine hundred and forty-five dollars and forty-nine cents, which will bo reduced by commissions on paying it out to eleven thousand five hundred and nineteen dollars and seventy-one cents, out of which the costs and fees of this case will have to be paid; that of this amount seven hundred and thirty-one dollars and sixty-three cents are Confederate treasury notes.
    “ The Commissioner further reports that it appears from the evidence that Thomas J. Manning, executor, received, during the years 1862 and 1863, fourteen thousand nine hundred and fourteen dollars and seven cents in Confederate treasury notes, and during the year 1864 five thousand and seventy-five dollars and sixty-two cents in Confederate treasury notes, and that during the years 1862 and 1863 he paid out twelve thousand seven hundred and forty-three dollars and eighty-two cents in Confederate treasury notes, and during the year 1864 twenty-six hundred and sixty dollars and ten cents in the same kind of currency. These expenditures were principally made for keeping up the plantation, supporting the family, educating the children, and considerable for the payment of debts due by the testator. Of the amount received by him most of it was for produce sold from the plantation, and some for debts due to the testator. The testator left at his death eighty-six dollars and forty-six cents in gold and State Bank notes, which is included in the above amount received.
    “Eli Manning, executor, received up to the 17th clay of April, A. D. 1865, two thousand five hundred and eighty-three dollars in Confederate treasury notes, and paid out one thousand seven hundred and forty-four dollars, and has now a balance on his hands of treasury notes seven hundred and thirty-one dollars and eighty-three cents. The amount received by him was altogether for negro hire and the sale of produce from the plantation, and the amount paid out was principally paid to the different legatees.
    “The Commissioner further reports that all of the property of the testator which was appraised has been accounted for, and the accounts vouched as well as circumstances will permit.
    “ The Commissioner further reports that all the currency of the country from the year 1862 to May, 1865, was Confederate treasury notes, and the amounts received and paid out by the executors does not seem unreasonable, as the most prudent citizens of the country were in the habit of doing the same thing. That so far as the sales of the produce from the plantation were concerned, it was a necessity, as impressing officers of the Confederate army were seizing all the surpl us produce in the country for the use of the army. That the testator owed as much, perhaps more, than was due him at the time of his death, and this the executors have extinguished, in the payments they have made. That it was almost universal for the citizens in this section of the State to invest their money in four per cent. Confederate certificates, as it was necessary to use them in the payment of taxes to the Grovernment, or submit to a loss of thirty-three per cent, on the old issue of treasury notes on hand.
    
      “ The Commissioner begs leave further to report as special matter, that, in the inquiries submitted to him, it appears that the estate of Mealy Manning has still in its corpus the estate of the Kinney wards, of whom his father was guardian, and that, in the settlement of the accounts herewith filed against the executors of Manning, no allowance has been made therefor, the Commissioner having no means of arriving at the amount still due said wards.”
    No exceptions have been taken to the Commissioner’s report.
    The following questions were discussed at the hearing, and are to be now decided :
    1. The slaves given by the testator to five of his children having been made free by the United States authorities before the division of the estate, and being valueless from the time they became free, whether they are to be taken into the account in estimating the amount of the property received by those children.
    2. Whether the slaves who constituted part of the testator’s estate, and were afterwards set free in the executor’s hands, or their value at the time of his death, are to be in any manner taken into account in estimating the amount of his estate for distribution.
    3. As to the money reported to be in the executors’ hands in Confederate notes, whether they are liable, under the circumstances, to account for the same in any other currency. And whether the investments by one of them in Confederate securities are to be allowed.
    I. Advancements, properly speaking, apply only to cases of 'intestacy. In the pleadings and argument in this case, however, the property given by the testator to his children, in. his lifetime, and ordered by his will to be accounted for by them, has been treated as constituting advancements, and I think correctly. I shall accordingly consider the property so given as being subject to the principles that appertain to the doctrine of advancements.
    It was urged that if the slaves that were left by testator, and who since his death have lost the character of property, are not taken into the account in the distribution of his estate, the slaves forming parts of the advancements made to some of his children, and who have undergone the same change, should in like manner be excluded in computing the advancements. But the questions are distinct; each of them must be decided according to the principles to which it is referable, and not according to what may seem to be the justice of this particular case. The children who were advanced suffered a misfortune, as it turns out, in receiving slaves. Those who were not advanced happened to be, in that, the subjects of good fortune. But if the negroes had continued to be slaves, and had increased greatly, the reverse would have been the case., While it is especially the province of this Court to do complete justice, it must not lose sight of settled principles, and cannot obviate or remedy the mischances incident to human affairs.
    Now, an “advancement always embraces the idea that the parent has parted from his title in the subject advancedin other words, that, when it was made, the child acquired the title. Ison vs. Ison, 5 Bich. Eq. 19; see 2 Wms. on Exors. 1073. These negroes therefore became eo instanii the property of those to whom they were given. Unfortunately they continued so until they ceased to be property. But, until then, the donees might have sold them for gold, or exchanged them for land or other property of permanent value. If that had been done there would have been no complaint on their part now. They could, not have béen deprived of their advantage, although the testator’s estate at his death had consisted entirely of slaves, and the other children had lost their inheritance in toto, because, according to theyirinciple of advancements, as we have seen, the slaves were their indefeasible property. But principle is immutable. If the property was theirs, it was theirs for better, for worse. I cannot distinguish this case from that of a child who receives an advancement in gold, and is afterwards robbed of it.
    Again, an advancement is to be estimated as of the time of the parent’s death, relation being had to the situation of the subject at the time of the gift.
    Interest is charged on its estimated value from the time for distribution, and an intestate’s estate (and this estate stands on the same footing) is distributable as of the time of his death. McDougcdd vs. King, Bail. Eq. 154; Youngblood vs. Norton, 1 Strob. Eq. 122; Me Caw vs. Blewit, 2 McO. Ch. B. 90. The Commissioner has proceeded according to these rules, and the parties advanced must account for the value of their several advancements, and interest, unless they decline to take any part of the estate, which they are entitled to do.
    II. The negroes left by testator are clearly not to be included or regarded in the distribution of his estate, because, since his death, they have ceased to be property. But it is contended that the executors are liable for the value they bore at the time of his death, on the ground of negligence or mal-administotion, which, it is said, consisted in this, that the executors might have paid the debts in twelve months, and then divided the negroes, but failed to do so.
    It appears from the executor’s accounts, that the debts were all paid before the close of the year 1868. But I am not sure that it was his duty, of his own motion, as. soon as that was done, to divide the estate. The Act does not in terms make it so. There certainly is no precedent for holding him responsible for all the consequences of such an omission, when, as now, the good faith and honesty of the executors are not in the slightest degree impugned. It is usual for one of the parties in interest to apply for a division. The infants, it seems, have no guardians, and I admit in general terms that it was the duty of the executors to do what was proper for the security of their shares. But there were among the legatees four adults besides the executors, neither of whom deemed it necessary or advisable to have an immediate division. It would be very harsh to visit these executors with a severe penalty merely for failing to do for the infants what the others have not done for themselves. But, in view of the state of the country between the time when the debts were all settled in 1863, and the time when the negroes were set free in 1865, it is by no means certain that it would have been practicable for the executors to effect a division during that eventful period. Men in every condition of life, if not actively engaged in the defence of the country, had their thoughts engrossed by the terrific struggle that was going on. Civil business, public and private, was suspended, and 'individual interests necessarily overlooked. The claim here made seems to show how it is already becoming difficult for men to carry their minds back and reproduce the condition of things during the period of tremendous anxiety through which we have so recently passed. And it is well for the Court to improve the first occasion presented to recognize distinctly the influence which it necessarily exercised in the transactions of life, and which cannot be justly ignored in adjudications relative to these transactions. And it is not unworthy of remark, in passing, that if the division of these negroes had in fact been accomplished, non constat, that the situation of the legatees would have been better than it is, for the negroes allotted to them would in the same manner have ceased to be property. If the rule of accountability was so stringent as to subject these executors to this claim, it would certainly evince great hardihood in any one to undertake the office.
    An executor is liable to make good the property that comes to his hands, if it suffer loss or deterioration through his default. 2 Wms. on Exors. 1278. But, "not to deter persons from undertaking the office, the Court is extremely liberal in making every possible allowance, and anxious not to hold an executor liable on slight grounds." Id. 1186. " An executor stands in the condition of a gratuitous bailee, not to be charged without some default. Therefore, if goods are stolen, he is not chargeable in equity," a fortiori, “ if taken by the king’s enemies.” In accordance with this view, "if money be put out, though without a decree on a real security, which there was no reason to suspect, but which turns out bad, the executor is not accountable.” Id. 1286. And, in Thompson vs. Wagner, 8 Des. Eq. 103, testator’s lands were sold in September, 1785, under a decree which directed the proceeds of sale to be paid to the executor. The purchaser’s bond was not sued by the Master until 1790, and when judgment was recovered he had become insolvent. The bill sought to charge the executor and the Master with the debt. It was proved that in 1786, 1787, and 1788, the executor frequently applied to the Master to get payment, and in 1792 employed a lawyer to make the Master do his duty, but did not take an assignment of the bond to himself. And the Court held that, considering these circumstances and the condition of the country from 1786 to 1790, the period between the time when the bond was payable and when it was sued, it would have been harsh and unreasonable to make the executor liable; that the debt might have been secured if sued as soon as due, but an executor is not bound to act so rigorously. The Master was also exonerated.
    The recent condition of the country was far more unfavorable to matters of business than that referred to in Thompson 
      vs. Wagner, and tbe loss of tbe slaves belongs strictly to tbe class of losses ■“ by tbe king’s enemies,” for which an executor is not liable.
    III. It appears by the Commissioner’s report that there was a balance in the hands of the executor, Thomas J. Manning, (who died in 1864,) of two thousand two hundred dollars and sixty-three cents in Confederate treasury notes, and an investment of five thousand dollars in certificates for four per cent, bonds of the Confederate States. The moneys received by him were for produce sold and debts to testator paid up, besides the sum of eighty-six dollars and forty-six cents in gold and State bank notes left by testator at his death. The only currency of the country from 1862 to May, 1865, was Confederate treasury notes; the most prudent citizens of the country were in the habit of receiving them ; the sale of produce was a necessity; the testator owed as much as was due to him, or more, and it has been all extinguished, and it was almost universal for the citizens of the district to invest their money in certificates for four per cent, bonds, as they were receivable at par in payment of taxes, and otherwise the money was liable to a loss of thirty-three and a third per cent, under a law of Congress. T. C. Weatherly and B. D. Townsend, gentlemen of great intelligence and large experience in' business, were examined at the hearing, and testified that during the year 1862 and the greater part of 1868, certainly as late as September, 1863, when the last of the debts due to testator were collected, it was usual for all persons, including trustees, to receive payment of debts in Confederate treasury notes. Prudent men would have received payment in that currency of all the debts collected by the executors during those years. The sale of the produce of the plantation from the date of the testator’s death up to March, 1865, when General Sherman’s army passed through the district, was a necessity, to avoid impressment, and nothing but Confederate money could be obtained in payment. The investment in 1864 of five thousand dollars in four per cents, was proper. In view of the value of the estate, it was not too large a sum to provide for the payment of taxes. Persons had to guess at the requisite amount.
    It was urged that the sales of produce would have sufficed to pay all the debts and expenses, and the choses in action might have been saved for the legatees. But was there any certainty that the choses in action would be more valuable than Confederate notes ? Is there any certainty that if they had been saved they would be so now? If we recur in thought to that period, we will remember that not only was there hope, more or less confident that Confederate notes and securities would be ultimately good, but an impression even more prevalent that one of the consequences of the failure of the cause of the Confederacy would be universal, individual ruin, alas! but too nearly verified. Then it was, moreover, our earnest policy, evidenced by State legislation, to sustain the credit of the Confederacy, which could only be done by giving value to her paper.
    I feel no hesitation in sanctioning all the accounts of this executor, including the investment in four per cents.
    The report finds a balance in the hands of the executor, Eli Manning, of eleven thousand five hundred and nineteen dollars and ninety-one cents, whereof the sum of seven hundred and thirty-one dollars and eighty-one cents is in Confederate treasury notes, leaving a clear balance of ten thousand seven hundred and eighty-eight dollars and eight cents.. The amounts received by him were altogether for negro-hire and sales of produce from the plantation. The entire account of this executor is also sanctioned.
    The last-mentioned balance is distributable among the several legatees, or such of them as shall receive shares of the estate, according to their several interests, subject to the payment in the first place of the amount due to Delaney J. Kinney and Mary A. Kinney. But these amounts have to be adjudicated by the Court before distribution can be made.
    In stating the individual accounts of the parties, the payments made to them in Confederate notes must not be charged according to their face, but according to the value of those notes at the time the payments were made.
    In accordance with the views above expressed, it is ordered and decreed that, in computing the advancements made to certain of his children by the testator, the negroes given to each of them be taken into the account at the valuation stated in the Commissioner’s report, with interest thereon from, the date of testator’s death.
    It is further ordered and decreed that the money balance reported to be in the hands of the executor, Thomas J. Mam ning, at the time of his death, and the investment made by him. in certificates for four per cent, bonds of the Confederate States, also the sum of seven hundred and thirty-one dollars and eighty-three.cents in Confederate treasury notes, reported in the hands of the executor, Eli Manning, be stricken from the estate of the testator remaining for distribution,' and that the said executors be discharged from accounting for the same.
    It is further .ordered that Delaney J. Kinney and Mary A. Kinney be made parties defendant in the cause.
    It is further ordered that the Commissioner take an. account of the remaining personal assets of the testator; also the individual accounts of the several legatees with the estate, embracing the property received by such of those who were advanced as .shall be willing to throw the same into hotch pot; an account of the amounts due to the testator’s wards, Delaney J. Kinney and Mary A. Kinney; and that moneys charged as paid to or for account of any of the parties be charged as of the true value of the same at the time of payment ; and that he report a scheme for the distribution and closing of the estate, with leave to report any special matter.
    
      It is further ordered that the Commissioner report a proper fee for Henry T. Moore, Esq., the solicitor appointed by the Court to represent the interests of the infant defendants, and out of what fund the same shall be paid. Mr. Moore’s services in the cause are still needed, and his appointment is continued.
    And, lastly, it is ordered that a writ of partition issue, according to the rules and practice of this Court, to make partition of the real estate among the parties entitled to the same under the testator’s will. Costs to be paid out of the estate.
    The defendants, Eli Manning, David W. Bethea and wife, Sarah Jane, James E. Manning, and the heirs at law of Thomas J. Manning, deceased, appealed and now moved this Court to reverse so much of the decree as relates to what are called advancements in negroes to several of the legatees, upon the following grounds:
    1. Because his Honor erred in considering the gifts of negroes made by the testator, in his lifetime, to several of the legatees as advancements.
    2. Because negroes having lost their character as property, since their emancipation, they cannot now be treated by the Court as property.
    3. Because, if the negroes given by the testator in his lifetime to several of the legatees are to be considered as advancements, then the balance of the negroes, which had formerly ' belonged to the testator, and which were on hand at his death, should also be considered as property, and be estimated as part of the estate for distribution.
    
      Dudley, for appellánts.
    
      Moore, contra.
    
      
       The following is a copy of tlie will:
      The State oe South Carolina, Marlborough District :
      I, Mealy Manning, of tlie district and State aforesaid, do make and ordain the following as my last will and testament:
      I will and desire that all my just debts be paid as soon after my death as convenient.
      Second. I give and bequeath and devise to my beloved wife, Mary Manning, for and during her natural life or widowhood, that portion of my land lying north of the new road, known as the Hunt Bluff road, to the Hilson Bay road, then with the Hilson Bay road to a lane, then with said lane to the back line dividing my land from Light Townsend. I also give to her seven negroes, viz., Barton, Hos, Peg, Levi, Andrew, Elizer and Abram, household and kitchen furniture, family carriage, two carriage mules, my horse Crocket, one four-horse wagon, one buggy, six cows and calves, six sows and pigs, twenty hogs. ,1 further will and desire, that after the death of my beloved wife, Mary Manning, the above-mentioned property be equally divided among my legal heirs.
      Third. I give and bequeath all the rest, residue and remainder of my estate and effects, real and personal, after satisfying the above bequests, to be equally divided among my children, Eli Manning, Thomas J. Manning, Sarah Jane Bethea, W. L. Manning, Jane R. Manning, Franklin Manning, John Manning, Holland Manning, Houston Manning, and Angenora Manning. J further will and desire that those of my children •who have received property from me previous to the mention of this instrument, will account to my estate for so much.
      
      Lastly. I do hereby nominate, constitute and appoint, my beloved and trustworthy sons, Eli Manning- and Thomas J. Manning, executors of this my last will and testament.
      This the twenty-sixth day of March, A. D. 1862.
      M. MANNING, [seal.]
      Jos. H. Lane.
      Susannah McRae.
      A. L. McCor-mic.
    
   The opinion of the Court was delivered by

Dunkin, C. J.

It is stated in the decree that the testator died soon after the execution of his will,. 26th March, 1862. By the third clause of that instrument he devises and bequeaths all the rest and residue of his estate, real and personal, to be equally divided between his ten children by name, and he adds ; “I further will and devise that those of my children who have received property from me previous to the execution of this instrument will account to my estate for so much.”

This Court concurs with the Chancellor in the construction of this clause of the testator’s will. The Act of 1791 does not apply to a case of testacy, and the gifts of negroes (as insisted on in the appellants’ first ground) may not be technically advancements. But the testator has made the law of his own property, and it is difficult to distinguish the effect of the language he has adopted in providing for its distribution from that chosen by the Legislature. In both, the period for fixing the rights of the parties is the death of the decedent. The value of the property to be divided is to be estimated as of that day, and so of the property which had been given off'to the children, taking that property in the plight and condition it was when received by the children. In March or April, 1862, slaves had their usual value, and those in the possession of the testator at the time of his death have been estimated by the Commissioner, as well as those which had been received previously by the several legatees, and there is no dissatisfaction with the valuation.

But we are constrained to differ from the Chancellor, when he declares that the negroes left by the testator are not “ to. be included or regarded in the distribution of his estate, because since ;his death they have ceased to be property and in this respect we regard the third ground of appeal as well taken. The true intention of the law,” say the Court in McCaw vs. Blewett, 2 McC. Ch. 90, in commenting on the Act of 1791, is, “that the estate of the ancestor is to be considered as a common fund, out of which each child is to draw at the death an equal proportion. That part of the estate which has been given is to be estimated at what it is worth at the death, relation being had to the situation at the time of the gift.” “ The rights of the parties are fixed at the death of the ancestor.” Such was also the purpose of this testator in directing the distribution of his estate. The rights of the several beneficiaries were fixed at his death. No delay on the part of the executors in making the division, from whatever cause such delay may have arisen, no subsequent revolution in the affairs of the country, can affect the principle of distribution, or vary the relative rights of the parties as they existed in April, 1862, when the will took effect. It will therefore be necessary, in estimating the value of the testator’s estate at the time of his death, that the Commissioner should take into the computation the value of the forty-five negroes left by him, and which were included in the inventory made by the executors. In this particular, the decree of the Circuit Court is reversed, and the decretal order of reference modified accordingly. In all other respects the decree is affirmed.

"Wardlaw and Inglis, J. J., concurred.

Decree modified.  