
    *John M'Caw and Wife v. Thomas G. Blewit and Wife and Others.
    Property in hotchpot how to be valued. What are advancements. Decree of the chancellor on iacts is generally conclusive. The answer oi'the defendant, who was called upon to slate what advancements had been made to him, that a certain note had been given in settlement of all advances is conclusive, unless rebutted by two witnesses, or one witness and circumstances; or unless the circumstances of the case shewed that higher evidence might have been given of the facts. What are advancements to a child, often depends upon the circumstances of the gift. An executor (under the circumstances) charged with interest from the time of receiving the fund to the commencement of the suit, and for all sums since received with the interest thereon received. That which was undertaken gratuitously shall not be converted into a demand. By hotchpot is meant, that each child is to draw at the death of the parent an equal proportion. But that part of the estate which has been advanced must be estimated at what it is worth at the death, relation being had to its situation at the time of the gift. The increased value arising from improvement on lands, or issue of slaves, is excluded by the statute of South Carolina. At the death of the ancestor the rights of the parties are fixed, and the improved value alter that period goes in the proportion of the capital, or original fund.
    Allen De Graffenreid died intestate on the 7th of January, 1821,leav-ing a widow and six children. His widow and son-in-law, the defendant, Thomas G. Blewit, administered on his estate; and after settling-part of the personal estate, with the remaining slaves and stock, raised a large and valuable crop, in 1821, on a part of the lands of the estate; and they leased out the rest of the lands for the year.
    At Chester, February term, 1822, a partition of the lands and remaining slaves (including nothing else) was made between the distrib-utees, at the suit of Mrs. De Graffenreid and the other distributees against Blewit and wife, several of the distributees, among them Mrs. M’Caw, being yet minors, to whom Blewit in the meantime had been appointed guardian.
    The case came before the chancellor upon exceptions to the commissioner’s report. The appeal came up, however, only on the following exceptions, which were sustained by Chancellor Thompson.
    
      “Second. That the commissioner had charged Blewit and wife with the following sums of money as advancements, to wit: to William Foote, §815; to S. Chisholme, §700; although the defendant expressly denied in his answer that they were advancements. The rule of law being clear, that when a fact is alleged in a bill and denied in the answer, the answer must prevail, unless disproved by two witnesses, or by rne witness with strong corroborating- circumstances.
    
      “Tim’d. That the commissioner charged the defendant with §1,375 f°r c°tton made on Hurts’s plantation in *1815, and asan advancement to Blewit and wife, when lie, Blewit, expressly denied in his answer having received any part thereof; besides its being proved that the cotton made there went into the possession of Hurts, and that A. De Graffenreid said it was to pay for the land and that it was also in proof that there was but a small quantity raised there.
    
      “Fifth. — As to this exception, the chancellor remarked, that the commissioner had charged the defendant with 84(53 for a horse and gig, &c. The horse had been accounted for by Blewit; and as to the gig, the court is of opinion that it cannot be considered as an advancement: the meaning of which term is, such a part of a man’s estate as he gives to a child on marriage, or on setting out in life, which may be necessary for its settling in the world. The term, advancement does not extend to trifling presents, as a gold watch, or any other gratuity. This exception is therefore sustained.
    
      “Eighth. That the commissioner charged the defendant with an old book account for 8419 with interest; whereas the defendant denied owing one cent, in his answer, which had not been disproved. On this the chancellor remarked that, independent of the answer of the defendant, there is other evidence to convince the court that all amounts, reckonings and demands between the parties were included in the note from Blewit to De Graffenreid for §2,550.
    
      “Ninth. That the commissioner had charged the defendant with one sixth part of the crop of 1821 made on the intestate’s plantation, with interest thereon, as improperly received in the partition and division of the estate. Upon this the chancellor observed, this court cannot see what could exclude the defendant from receiving his distributive share, rather than any other distributees.
    “ Tenth. That the commissioner charges the defendant* with one sixth part of eight negroes born after the death of the intestate and before the division, with interest thereon, as improperly received by the defendant in the partition of the estate; when, the defendant contends, by law he is entitled to his proportion thereof. This exception was sustained by the chancellor.
    
      “Eleventh. That at the division the defendant accounted for 82,550, being the same amount as charged against him in a note in which his name is torn off, and which therefore ought not to be charged a second time. The chancellor remarked, ‘ that from the evidence it clearly appeared that the last note was given as a substitute for the former. The certificate of A. De Graffenreid establishes this fact beyond a contradiction. This exception must therefore be sustained.’
    
      “ Twelfth. That the defendant ought not to be charged with interest on the amount due from the filing of this bill; as the defendant offered to settle and pay the complainants the money, and the funds have been kept for him. The chancellor said, that under the circumstances of the case, the defendant should not be chargeable with interest. This exception was therefore sustained.
    “ Thirteenth. The administrator is chargeable with interest from the time the funds came into his hands; unless he can make it appear that he could not safely put it out to interest. Fie was afterwards only chargeable with the annual balance.
    
      “Fourteenth. That the commissioner has allowed the defendant no commissions.” The chancellor was of opinion that the defendant having obtained the administration on the express condition that he would not charge commissions, he should not be allowed to turn round and demand them. This exception was overruled.
    *The following grounds of appeal were taken up from the chancellor’s decree.
    First. That the court permitted the testimony of Hobson and Mills, the sureties of Blewit as administrator and guardian, to be received; and decreed on it, although it was objected to both before the commissioner and the court.
    Second. That the defendants’ exceptions, though sustained, ought to have been overruled, particularly the ninth, which was not founded on the facts of the case; and the decree deprived the complainants of one-seventh part of the crop of 1821, to which it was admitted they were entitled.
    Feb. 1827.
    Johnston, for the complainants,
    M’Caw and wife, objected to the circuit decree so far as it supported the second exception of the defendants. The rule in favor of the denials of facts alleged in the bill, in an answer, is not to be extended. The broad rule laid down by the chancellor is, at least questionable, not only on the score of policy but of authority. There are decisions to this effect, that one witness in proof of the bill, unsupported by circumstances, may be weighed against the. answer of the defendant : that it is the right of the court thus to decide on their credibility: and the. only way in which the defendant can avoid such an investigation is, by asking an issue at law, which must be granted. 9 Ves. 283, 284. It will be recollected, the chancellor in this case was not investigating the evidence in the first instance, but was listening to objections made to the report of the commissioner, who had heard the evidence and decided on it. According to the opinion of this court, delivered during the present term, in the case of Warden v. Burts, the commissioner’s judgment on the evidence is to be preferred to the chancellor’s. The rule as to contradicting *an answer is, that one witness is sufficient, if more credible than the defendant; if not, two are necessary; or one, and circumstances are required where the witness and defendant are of equal credit: and the judgment of the officer who first hears and decides on the evidence, is to be preferred. But admitting the rule laid down by the chancellor, the answer must contain a direct and explicit denial. ] Phil. Evid. 110. Now the answer, as to the $815 paid Foote, contains no denial of the charge in the bill ; but on the contrary admits it. Indeed, it admits and avoids it: yet the avoidance consists of a distinct fact, viz: that sum having been settled with the intestate afterwards. When an avoidance consists of a distinct fact, it must be proved. 2 Johns. Cha. Rep. 88, et seq. This is the rule of sound sense. Is not a defendant as much bound to prove his allegations as a plaintiff? Suppose, for instance, an executor admits the receipt of assets, but states that he has paid them out, and files an account of disbursements; is he not bound to prove them? In principle, where is the difference between the present case and that ?
    But as to the money paid Foote, the rule requiring two witnesses was complied with by the testimony of Mrs. DeGraffenreid and Foote.
    As to the $700 paid Chisholme. In addition to the right of the commissioner to believe Chisholme in preference to Blewit, the answer does not distinctly meet the charge. It does not deny the charge that 8700 were paid by the intestate to Chisholme; but denies that intestate paid for the slaves George and John. That may be so; and vet $700 might have been paid for other slaves or other property. Chisholme proves that was the fact.
    There arc other circumstances wffiich tend to shake the general credit of Blev'it’s answer, and to support the commissioner’s report. 1. He denied the striking out the old accounts and the receipt of the cotton on the plantation* called Hurts’s. His answer in both these points was flatly contradicted by credible witnesses.
    2. He objected to the decree on the defendants’ third exception. Blewit and wife’s answers were contradicted by the testimony of Mrs. De Grafienreid, Allen De Graflenreid and Mr. Mosley; yet they were fully supported by Williams. The commissioner weighed the testimony, and his report ought not to be set aside. Chancellor Thompson did not weigh the testimony, but felt himself constrained by the rale as to two witnesses; a rule which most clearly did not apply.
    3. As to the decree on the defendants’ fifth exception. The chancellor’s definition of an advancement, and his application of that definition, are questionable. There is difficulty in settling a rule. If a definition may be ventured, “an advancement is the gift of a parent to a child, beyond what by law he is bound to provide, from which a substantial benefit is to be derived by the child.” It must be beyond what the parent is bound to provide; for clearly, necessaries or expenses of education are not advancements: and it must be substantially beneficial; otherwise toys and trinkets would constitute it. A horse and gig are not only beneficial, but by custom necessary to settling in the world ; nearly as much so as a house, servants, or other things usually considered indispensable.
    4. He objected to the decree on the defendants’ twelfth exception. The chancellor assumed the fact stated in the exception as true, although there was nothing- in the evidence to support it. The evidence was, that Blewit retracted his offer to settle, and that although the plaintiffs delayed for six months, lie made no payments. Who proved that the funds were kept for the plaintiffs? There was no such evidence. On the contrary, Blewit’s amended answer stated that the greater part of the estate consisted of bonds and notes, which, *instead of being collected and kept, were outstanding at interest.
    The chancellor decreed “under the particular circumstances.” Disclaiming any intention to censure the chancellor, it were to be wished that decrees “under the circumstances” were out of fashion. They are a cloak to the exercise of arbitrary discretion, and by the omission to state the facts, or define the circumstances, the party against whom the decree is pronounced is often deprived of the means of setting it aside, even when erroneous.
    Upon what circumstances could the chancellor have relied ? Was Blewit willing to settle ? The evidence said not. Was the money kept to await the decree ? The evidence, and Blewit’s own answer said it was not. Was he receiving interest on the funds? His answer admits that he was. Was the court prepared to lay down the doctrine, that interest stops on filing a bill ? This decree said so; and gave the defendants seven per cent, per annum for postponing cases. The decree gave Blewit twenty-five per cent, on bonds drawing interest; being the amount of interest since July, 1823. If this be the law, it ought to be known. No executor or administrator will hereafter settle, until he is sued. It is said Blewit was obliged to stand suit: that advancements were charged against him, to.x which he was not buund to account. Admit this, still did he not know how much he was willing to pay? Why not tender it, either in money or the securities of the estate ? In principle, is not a defendant in equity as much bound to tender either the one or the other, as he is bound to tender money at law?
    On the other hand, is it not true, that the plaintiffs were obliged to sue? The decree admitted, they had a right to recover. Now, if they were desirous to sue, and had a right to recover, why not give them interest on what they were entitled to? The constant practice is *to give interest in such cases, unless the defendant had shown, that he could not make interest. In cases where, at the trial, the funds consisted of paper, the plaintiff is usually given the alternative of taking his share, or the defendant is allowed a reasonable time to collect; which would not have been objected to by the plaintiff’s in this case.
    5. He took up the decree on the eleventh exception of the defendant. The question is presented, whether the record in the partition case can be explained by letting in Blewit’s declarations, made at the time, to shew that the entry in the record of partition, “cash at sundry times, $2,550,” referred to the note of $2,550. Even if such testimony were competent, the complainants are entitled to their share of the interest on the note up to the partition.
    6. ITe proceeded to the decree on the defendants’ sixth, ninth, and tenth exceptions. He would consider the ninth exceptions only, as the others clearly depended upon the same principles.
    The chancellor here again, without proof, assumed the facts stated in the exception ; and considered the crop of 1821 as having already been partitioned.
    Williams. It is admitted that the crop of 1821 was not partitioned. The statement to the contrary, in the ninth exception, proceeded from mistake. The plaintiffs were entitled to either one-sixth or seventh of the crop.
    Johnston, in continuation. The decree however deprived the plaintiffs of any part of it. The doctrine about to be contended for would present totally new points of construction of the act of 1791. It was felt to he a duty to contend for a construction of that act wholly ’’’repugnant to what on the circuit was deemed its clear meaning. The intestate died in January, 1821. If Blewit had then for partition, his previous advancements would have amounted to his full, share of the estate, as it then stood. He would therefore have been entitled tono share of the estate on hand ; but that would have been divisible among the unportioned distributees. By postponing the partition, he could not become entitled to a share of either the increase or profits of an estate in which he had no interest at the intestate’s death.
    Partitions must he made, let them take place when they may, in reference to the state of things existing at the death of the intestate. If a child has been advanced his full share of the estate as it then stood, that child can take no part of after increase or profits. If his or hel-ad vancemenls fall short of the share, his or her share of after increase and profits must be in proportion to the deficiency. This is the true intent and, it may be added, the clear meaning of the act. When the convention imposed an obligation on the legislature to pass this act, they were actuated not only by the spirit of natural justice, but by considerations of profound policy and wisdom. Equality is the very basis of a popular government. An equal distribution of wealth is attended with an equal distribution of the means of obtaining intelligence ; the life and soul of a government of the people. To secure these was the object of the convention. That construction most favorable to equality is in accordance with the act. The act, standing in the place of the parent at his death, observes to one child, ‘‘some years ago I gave you twenty slaves; their increase and the profits of their labor, being the result, shall also be the reward of your care and diligence. I now give twenty slaves to each of my other children; let their care and diligence be awarded in like manner by their increase and labor.” Thus the act gives each child an share. Were partitions to be governed by the rule laid down the chancellor, what inequality and injustice would result therefrom ! A parent, having forty slaves and one child, gives twenty of them to him. He lives until his son’s slaves by procreation have increased to one hundred, and his own to an equal number. Just before his death he has another son born. He dies, leaving these two sons. Shall the advanced child, not satisfied with his own increase of eighty slaves, nor with half of the increase, of his father’s stock, be allowed to wait ten or twenty years longer until his ancestor’s estate by compound increase upon increase has trebled itself, and then come in for an equal share of the whole, by merely accounting for his original twenty slaves ?
    Again, suppose the case like the present. A child who has been advanced gets himself appointed guardian over his brothers and sisters. Knowing that he has been fully advanced, he does not claim immediate partition. Having the reins in his own hands, he calmly waits out the whole period of his ward’s minority. If the intestate’s estate does not increase, he says nothing about partition ; but if it should, he instantly makes hotchpot and claims it. There are many other circumstances pointing out the death of the intestate as the period of partition.
    1. Advancements are required, by the act, to be estimated by their value at the death of the ancestor. The rule is, to inquire what the article given in the situation it was when given, would be worth at the donor’s death.
    2. The act declares the estate distributable at the intestate’s death.
    3. When a child in making hotchpot retains the property originally advanced, it changes the mode of taking from purchase to inheritance, 2 Murph. 133. This implies that the partition must relate to the period *of the ancestor’s death ; that being necessary to connect the ancestor and heir; so that the estate which passes out of the one shall instantly enter into the other.
    4. If a child adheres to ad vancements, he or she is not liable for the ancestor's debts on the score of assets descended; otherwise, if he makes hotchpot. This implies the same relation back to the time of the ancestor’s death, in order to clothe the child with the character of an heir.
    5. By the act, the estate, of one dying after March shall not be instantly distributed. This is an exception, and proves the rule.
    Williams, contra.
    
    
      1. As to the amount paid Foote, he cited Harper’s Eq. Rep. 200.
    2. As to the amount paid Chisholme, Harper’s Eq. Rep. 142. 2. Scb. & Lef. 532.
    3. As to the crop given with the plantation called Hurts’s, he said, considering the testimony was conflicting, the chancellor’s decision ought not to be set aside.
    4. He submitted whether the horse and gig constituted an advancement ?
    5. As to interest, he cited 3 Desaus. Rep. 241. 4. Desaus. 556. After suit commenced, Blevvit could not safely let out the funds, not knowing when he would be called on for them.
    He consented that complainants should have interest on such parts of the funds as draw interest; but not as to money in hand.
    6. As to commissions, he contended that the decree should be reversed. Blewit’s contract was without consideration, and made under a mistake.
    7. As to the decree on the sixth, ninth and tenth exceptions of defendants, he conceived the decree should be affirmed. The doctrine contended for by complainants* was novel, and until now unheard of. Both the chancellors were opposed to the complainants construction of the act of 1791.
    Johnston, in reply.
    As to commissions, Blewit’s contract was proved. It was made with the ordinary, for the benefit of the infants, and would inure to their benefit. It was not without consideration, for, inasmuch as Mrs. De Graffenreid would have administered without charge, it would be a fraud on the infants to allow Blewit to charge. His extra trouble could not entitle him to it; he must sue at law for that. He could have been of no service in the surveys; besides, he must have attended on his own account as a distributee, and not as an administrator; and for this he charges at the rate of §8,000 per annum.
   Curia, per

Colcock, J.

In this case I shall pursue the order which has been observed in the argument on the different exceptions. We concur with the chancellor in the view which he has taken of the facts and in so much affirm the decree. It is true that there is great room to doubt as to some of them; but it is impossible for this court to weigh with scrupulous exactness the evidence which was given before the commissioner. Should we attempt to do so, we have no guarantee that we should approach any nearer to the justice of the case than the chancellor has done; for it must be obvious to every intelligent mind, that at every interval from the source of information the difficulty of ascertaining the truth is increased.

The two first objections may be considered together; for the reasoning on the facts, and the law on them, are equally applicable to both. As to the sum paid to Foote there can be no doubt; and though there may be some as to that paid to Chisolme, yet the most that can be *made the facts is, that there is oath against oath; and that certainly affords no ground to disturb the decision. But as to both, the defendant says the note of $2,500 contains all the advancements made by the intestate for him. And it appears that this note is of a date subsequent to the payment of all those sums, and made on a final settlement; and therefore affords strong evidence of the truth of the defendant’s answer. Now it is said that this is matter in avoidance, and should have been proved by the defendant; but the law does not require that which is impossible. How could the defendant prove his assertion, except by his oath ? If there had been regular books kept between them as to these matters, it would have been susceptible of proof; but from the. nature of the transaction, and the relative situation of the parties, it was not to be expected that such clear and satisfactory evidence could be produced as might have been furnished in a matter of dispute between two merchants keeping regular books. The observations which have been made apply with equal force to the cotton charged; for if the testimony of Alíen De Graffen-reid be put out of the case, there is the oath of the defendant and the overseer against that of Mosley : and if admitted there would still be a preponderance in favor of the defendant; for a man may not consider himself bound to deny everything which he knows to be untrue, that is stated in his presence. If he does so when called on his oath, and that oath is not disproved, the bare circumstance of his not having denied it before, is not sufficient to discredit him.

On the fifth exception, which relates to the horse and gig, I -would remark, that it is not always clear what shall be considered as an advancement. Much depends on circumstances. I cannot but think that the same article of property, given under different circumstances, might be differently viewed in this respect. Thus a *horse given a farmer of limited to one of his for the pose of agriculture, may be considered as an article of use and necessity, and therefore, regarded as an advancement; while another horse, given by a wealthy man to his daughter, to be driven in a carriage, would be considered as an article of mere luxury, like a gold watch or ring, and not to be charged as an advancement. Is it reasonable to suppose that the intestate in this case would have so considered the and horse ? I think not.

On the subject of the note for 82,500, I can perceive no difficulty. It is brought into the account by the executor with apparent fairness; and if there was any other note due by him to the testator, it is certain that no evidence has been offered to prove it. I think the vague and slight suspicions which seem to have been indulged on the subject are sufficiently removed by the production of the certificate of the intestate. That the interest should have been charged on the note, is admitted by the defendant’s solicitor, and must be taken into the account. On the subject of interest generally, it is the opinion of my brethren, that the executor must be charged with it from the time of receiving the different sums of money to the commencement of this suit; and for all sums since received, with the interest thereon received.

On the question of commissions, the court are unanimously of opinion that the executor is not entitled to them. He voluntarily undertook the duty under the express stipulation that he would not charge them; and he cannot now be permitted to violate that contract. That which was expressly declared to have been intended as a gratuity shall not now be converted into a demand.

The last question raised in this case is by no means free from difficulty. How the property which is brought *into hotchpot is to be estimated does not seem to be determined. The great object of our statute was to produce equality among the children of a deceased person : and it has been contended, that the equality is to have relation to the time of the death ; because then the estate is to be divided, and then the property valued. But this is an incorrect view of the subject, and one which could not be carried into operation. There might arise many objections to its practical operation, such as the loss of the property before the death of the ancestor, or the disposition of it by the child advanced. The true intention of the law 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 its situation at the time of the gift. Thus a father gives to one of his sons a healthy negro boy of twelve years of age, and ten years after the gift the father dies. If this boy be brought into hotchpot, his value will be estimated as that of a boy twelve years old; and whatever such a boy would then bring, the child is to be charged with as an advancement. The increased value of the property given which arises from improvement is expressly excluded by our act, which constitutes an important difference between it and the statute of Charles. The clause of our act is, “In case any child, or the issue of any child wdio shall have been so advanced, shall not have received a portion equal to the share which shall be due to the other children (the value of which portion being estimated at the death of the ancestor, but so as that neither the improvement of the real estate by such child or children nor the increase of the personal property shall be taken into the computation,) then so much the estate of the intestate shall be distributed to such *child or issue, as shall make the estate of all the children equal.”

As to the claim of the defendant to any portion of the improved value of the estate since the death, that of course must depend on his claim to any part of the capital of the estate. The rights of the parties are fixed at the death of the ancestor. If, therefore, on taking the final account, it shall appear that the defendant’s advancements do not place him on a footing of equality with the other children, he will of course, be entitled to receive from the capital of the estate such a sum as will produce that equality, and, consequently, a proportionate share of the increase, or profit, which has arisen since the death. The decree of the chancellor is, therefore, so modified as to meet this view of the case, and an account to be accordingly taken. The crop of 1821 has not been divided, and, of course, is to be taken into the account.

Decree modified.  