
    
      J. C. Youngblood et al. v. William Norton et ux. et al.
    
    The true intention of the Statute of 1791 is, that the estate of an intestate ancestor, including advancements, is to be considered as a common fund, out of which each child is to draw, at the intestate’s death, an equal portion; in ascertaining which, that part which has been given, or advanced, is to be estimated at what it is worth at the intestate’s death, relation being had to its situation at the time of the gill.— Vide McCajw vs. B/evyit, MeC. C. ft.
    In the absence of a testamentary disposition, the Statute controls the distribution, as intestate property; and it is not competent for a party to give any other direction than the Statute gives, unless, by a will, he deprives the property itself of the character of intestacy, in virtue of which the Statute assumes the disposal of it.
    What are, or are not, advancements, must always depend very much on the condition in life of tire parties, and may be absolutely fixed by their intentions at the time, if they can be ascertained.
    
      Before Dunkin, Ch. at York, June, 1845.
    In this bill, to marshal assets, the following orders were taken, to wit: “ On motion of Williams and Alston, complainants’ solicitors, ordered, that W. J. Clawson, Esq. Commissioner of this Court, be appointed the guardian ad litem of John Williams, an infant defendant in the above case.
    June 18, 1844. J. Johnston.”
    Also, “ On motion of Williams and Alston, complainants’ .solicitors, ordered, that it be referred to the Commissioner to take an account of the estate of William Youngblood, deceased, in the hands of the complainants ; also, to ascertain how many, and which, of the heirs and distributees of the said William Youngblood were advanced by him, in his lifetime ; how many, and which, of the said distributees elect to throw their advancements into hotch-pot, and come in for general distribution; and the amounts respectively advanced to those claiming a share of the estate in complainants’ hands. In taking an account of the advancements to the distributees of the estate, the Commissioner is directed to estimate the advancements at what the property was worth at the death of intestate, having reference to the condition of the property at the time it was advanced, without regarding any stipulations between the intestate and advanced distributees, as to the value of the advancements. It is also ordered, that the Commissioner do inquire and report what will be a suitable settlement to be made of the interest or share to which Eliz. Wilder may be entitled, out of the intestate’s estate.
    June 18, 1844. J. Johnston.”
    Under the decretal order, the Commissioner made his report. Exceptions were taken by all the parties, the substance of which will be found contained in the following, of Norton and wife, viz:
    1. Because the Commissioner has charged them for a negro boy, called Jim, as an advancement; said boy having been purchased and paid for in full, by defendants, as appears by bill of sale of intestate — uncontradicted by any competent testimony.
    2. Because, if the defendants are in any wise chargeable for any portion of the value of said boy, as an advancement, the Commissioner has placed a higher valuation on him .than the testimony warrants, entirely disregarding the valuation of the numerous witnesses for defendants.
    3. Because the Commissioner has charged interest on said supposed advancement.
    4. Because the Commissioner should have charged Jane Wood with the value of a negro woman, named Fair, proved to have been advanced to her husband, W. S. Wood, by intestate, and worth $>400 or $>500.
    5. Because the Commissioner should have charged John W. Youngblood for his own board, and his apprentices’, and feeding a horse for ten or twelve years, after John became of age.
    6. Because the Commissioner has allowed Emily Thomas-son to come in as a distributee, after her appearing before the Commissioner, on the first reference, and formally electing not to come in for distribution, and was permitted to give evidence against defendants.
    7. Because the Commissioner is in error in stating in his report, that defendants’ solicitor consented that any incompetent testimony should be taken.
    And the 4th of Suggs and wife et al. viz:
    Because the Commissioner has charged J. H. Suggs with a bed and furniture, cow and calf.; Jane Wood and Emily Thomasson, each with the like articles; and J. W. Young-blood with a bed and furniture, as advancements to them, when it is submitted that they are not properly chargeable therewith.
    
      Circuit Decree.
    
    Dunkin, Ch. The Commissioner’s report is prepared with great care, under a decretal order of reference heretofore made.
    The cause was heard on exceptions to that report, which will be considered in order.
    The first, second and third exceptions on the part of Norton and wife, are in relation to the same subject matter. The first, second and third exceptions on the part of Suggs and wife, and all the exceptions of Jesse Williams and others, refer to the same transaction as that embraced in those exceptions of Norton and wife.
    On the 26th February, 1839, the intestate, William Young-blood, sold to his son-in-law, William Norton, a negro, named Jim, for one thousand dollars. J. C. Thomasson was one of the witnesses to the bill of sale. He proved that he was privy to the arrangement, and drew the bill of sale. It was agreed that the purchase money should be paid in this manner, viz: Norton was to give his bond to pay four hundred dollars to the children of William Williams, deceased, (who had married the daughter of intestate,) and the remaining six hundred dollars was to be regarded as so much advanced to Norton on account of his share of the intestate’s estate, and was to be so accounted for by him, in the distribution of the estate. The testimony of the witness is full and distinct, and leaves no doubt as to the true nature of the transaction. The bond for the four hundred dollars, to be paid to the children of Williams, was executed at the same time, and witnessed by Thomasson. The intestate said he did not take a receipt from Norton for the six hundred dollars, because he intended to make his will and charge him with it, and, (as he expressed it,) “ fix it all.”
    Objection was made to Thomasson’s testimony, on the ground that it was in contradiction of the bill of sale. But this is not perceived ; so far as it proves the transaction to have been a sale, it is in strict accordance with 'the deed. But it is urged that the bill of sale is an acknowledgment, under seal, that the intestate had received the consideration money. The testimony of Thomasson does not invalidate this conclusion. It cannot be meant to say, that no testimony is admissible to shew the mode in which the consideration was paid, whether in specie, bank bills, or the bond or promissory note of the purchaser, or by discount. If Thomasson had proved that Norton gave his bond for four hundred dollars, and paid the intestate, in cash, six hundred dollars, this testimony could scarcely be obnoxious to exception. But this is, substantially, what he does prove; superadded to which, he says that the intestate delivered back the six hundred dollars to Norton, by way of advancement, and that Norton agreed so to receive it and account for it; for this is the effect of what he proves. The rule is very fully discussed in Blakely vs. Hampton, 3--, 269. Norton and wife are chargeable, then, with the six hundred dollars, and the children of Williams with four hundred, with interest on the respective sums from the death of intestate, according to the principle declared in McDougal vs. King, Bail. Eq. n. 155.
    The fourth exception of Norton and wife is in regard to the girl Fan. The testimony is not perfectly satisfactory. But it is to be remarked, that none of the other parties have excepted on this ground, and it is very doubtful if Norton and wife are concerned in the result. But the girl was certainly returned to the intestate, and died in his possession, and the testimony of James Bryan might well warrant the conclusion, that the intestate had ultimately acquiesced in receiving her, and supplying his daughter with another in her place. The exception is overruled. The fifth and sixth exceptions are overruled.
    All the exceptions on the part of the children of Williams, and all the exceptions on the part of Suggs and wife and others, except the fourth, have been disposed of by what has been heretofore said.
    The fourth exception is, because Suggs and wife, Jane Woods, Emily Thomasson and J. W. Youngblood, have been charged with some articles, as advancements, which ought not to be so charged. It is not doubted that they received the articles from the intestate, but the argument was, that they were not in the nature of advancements. The first observation to be made is that, according to the testimony submitted by the Commissioner,'all these parties, except Emily Thomasson, appeared before him in person or by affidavit, admitted the receipt of these articles as advancements, and desired that they should be brought into hotchpot. What are, or are not, advancements, must always depend very much on the condition in life of the parties, and may be absolutely fixed by their intentions at the time, if they can be ascertained. The Court sees no testimony to warrant the conclusion that the articles given to Emily Thomasson were to be placed on a different footing from that on which the same or similar articles were given to the other children. The intestate seems to have been anxious to preserve equality between them, and the report carries out the intention. The exception is overruled.
    It is ordered and decreed that the account be reformed, according to the principles of this decree, and that the Commissioner recommend a fit and proper person to act as trustee for Mrs. Wilder.
    Defendants, William Norton and wife and William Wilder and wife, appealed from the decree of Chancellor Dunkin in this case, on the following grounds.
    1. Because William S. Wood, Samuel C. Youngblood, Emily C. Thomasson, and other distributees who were examined, were incompetent witnesses.
    2. Because the answer of William Norton and wife ought not to have been ordered to be taken off the file, as the same had been filed on the 23d of April, 1845, and copy furnished to the complainants’ solicitor, and no exceptions filed to that answer, and the same was acted on by all parties as regular, and used in evidence before the Commissioner.
    3. Because the Chancellor should háve granted further time to William Norton and wife to perfect their answer, if the same was not then perfect, as they were defendants resident out of the State; which was moved for and refused.
    4. Because the decree of Chancellor Dunkin contravenes the principles laid down by Chancellor Johnston’s order, under which the reference was held.
    5. Because the decree of Chancellor Dunkin directs Norton and wife to be charged with six hundred dollars, as an advancement, being part of the price of negro Jim, referred to in the report.
    6. Because the report of the Commissioner ought to have been confirmed as to the $280, an advancement charged on account of the boy Jim.
    7. Because the decree of Chancellor Dunkin is founded on a case not made by the complainants’ bill, inasmuch as the decree is against William Norton and wife, as debtors, when there is no such charge in the complainants’ bill.
    8. Because the decree of Chancellor Dunkin directs a trustee to be appointed for Mrs. Wilder, when she is not demanding such appointment.
    9. Because William Norton and wife should not have been charged any thing as an advancement, on account of the negro boy Jim, or if any thing, not even to the extent of the Commissioner’s report, much less to the amount directed by Chancellor Dunkin’s decree.
    Thompson and Smith, for the motion.
    Williams, contra.
    
   Johnston, Ch.

delivered the opinion of the Court.

The first ground of appeal, which excepts to the competency of certain witnesses, seems to be obviated by the consideration, that the decree does not depend on the testimony objected to.

The second and third grounds, in relation to the answer of Norton and wife, involve matters within the discretion of the Chancellor; in the exercise of which we do not perceive any evidence of mistake on his part.

The remaining point pressed in argument, relates to the advancement made by the intestate to his daughter, Mrs. Norton.

By the order of reference the Commissioner was directed to estimate the advancements by the worth of the property at the intestate’s death, having reference to its condition when given, without regard to stipulations between the intestate and the advanced distributees, intended to fix a different value upon it.

In the instance before us, it appears that the intestate made a bill of sale to his son-in-law, Norton, for a slave, named Jim, estimated in the deed at the value of $1000 — of which sum Norton paid $400 to the children of Mrs. Williams, by the direction of the intestate, as an advancement to them ; and it was agreed that the negro, as to the remaining $600, should constitute an advancement to his wife.

By the evidence before the Commissioner, it appeared that this slave, in the condition in which he was thus received, was worth $700, at the death of the intestate; and the Commissioner, in making up the accounts, charged the children of Mrs. Williams, as an advancement, with $480, (being the sum of $400, paid them, with interest thereon;) and, deducting that sum from the value of the negro, charged the balance, ($220,) to Mrs. Norton, as an advancement to her.

When the report of the Commissioner came before the Chancellor, the directions, contained in the order of reference, were overlooked; and he decreed that the advancement of Mrs. Norton should he charged at $600, and ordered that the report be corrected accordingly.

It appears to the Court, that the direction given in the order of reference was correct, and that the report should be conformed to it.

The true intention of the Statute of 1791, as expounded in McCaw vs. Blewit, (2 McC. C. R. 90,) is, “that the estate of an intestate ancestor,” (including advancements,) “ is to be considered as a common fund, out of which each child is to draw, at the intestate’s death, an equal portion ” — in ascertaining which, “ that part which has been given,” or advanced, “ is to be estimated at what it is worth at the intestate’s death, relation being had to its situation at the time of the gift.”

The valuation of advancements has a material influence in the distribution of the property remaining in the hands of the intestate, at the time of his death: because the proportions in which the respective distributees are to participate in the latter, must depend on the higher or lower value to be put on the former. This needs no illustration.

The question, then, is, whether a mere direction by the intestate, as to the valuation of his advancements, can take the property, of which he dies possessed, out of the operation of the law of intestacy — or modify its distribution under that law; and we are of opinion it cannot. Any act by which a decedant exercises a control in the disposition or distribution of property belonging to him at his death, is, essentially, a testamentary act, and requires the formalities of a will. In the absence of a testamentary disposition, the Statute controls the distribution of the property, as intestate property; and it is not competent for a party to give any other direction than the statute gives, unless, by a will, he deprives the property, itself, of the character of intestacy, in virtue of which the Statute assumes the disposal of it. (See Young vs. Lorick, Columbia Eq. MS. D. p. 193; and Sheppard vs. Sheppard, Id. 197, where the same doctrine is held.)

It follows from these views, that the Chancellor should have ordered that the report be corrected, by charging the advancement of the children of Mrs. Williams at $400, instead of $480; and that of Mrs. Norton, at $300, instead of $220. And it is ordered that the decree and the report of the Commissioner be so modified.

In all other respects the decree is aiflrmed.

Harper, Ch. concurred.

JDecree modified.  