
    THOMAS A. PERSON, Ex’r. &c. vs. THOMAS T. TWITTY.
    Where a father had made a parol gift of slaves to a daughter, and afterwards died, leaving a last will and testament, by which he only devised lands and appointed executors, but made no disposition of his personal property ; Held, that this was not such an intestacy, as was meant by the proviso of the act of 1806, Rev. Stat. ch. 37, sec. 17, that the daughter therefore acquired no title to the said slaves as an advancement, in the case of an intestacy, and the executors were entitled to recover them from her or her assignees.
    The cases of Richmond v. VanhooTc, 3 Ired. Eq. 581, Hurdle v. Elliott, 1 Ired. 176, and Brown v. Brown, 2 Ired. Eq. 309, cited and approved.
    Appeal from the Superior Court of Law of Franklin County, at the Fall Term, 1845, his Honor Judge Settle presiding.
    This was an action of detinue for certain slaves, in which the defendant pleaded non-debinet. On the trial, the following statement, as a case agreed, was submitted to the judgment of the Court.
    The negro slaves mentioned in the plaintiff’s writ and declaration, were the property of tire late Presley C. Person, who by parol gave the same to his daughter Mary C. wife of William 0. Montgomery, and delivered the same to the said William, who continued in the possession thereof until after the death of the said Presley C. Person, in February, 1845; and, a judgment being entered against the said Montgomery, at the instance of one of his creditors, execution was issued thereon, the slaves were taken by the Sheriff and sold ; and at the sale the defendant became the purchaser, took possession, claiming the slaves as his own, and so continues to hold them; The said Presley C. Person left a will in writing, which after his death was duly proved, and the plaintiff, one of the executors therein named, duly qualified as such, the other executor therein named being dead. The will of the testator disposed only of his real estate, the personal estate being entirely undisposed of. It is insisted by the defendant, that the said Presley C. Person died intestate within the meaning of the proviso to the 17th section of the Revised Statutes, ch. 37 ; inasmuch as the said will is, at most, only a devise of the testator’s lands, and does not bequeath any of his personal estate. While the plaintiff insists that the said Presley C. Person died testate, within the meaning of the said proviso; because the proviso contemplates only the case of an absolute intestacy, as to any of his estate, whereas, the mere appointment of an executor is a disposition by the testator of-all of his personal estate. And it is agreed, if the opinion of the Court shall be for the plaintiff, judgment for • the slaves, to-wit: Jacob of the value of $500 and Ritter of the value of $700, and $37 50 cents for the detention, and for the costs, shall be for the plaintiff — otherwise judgment to be entered for the defendant.
    Upon the consideration of this case agreed, his Honor declared himself to be of opinion for the plaintiff, and judgment was entered accordingly. From which judgment, the defendant appealed.
    
      
      Saunders and Gilliam, for the plaintiff. .
    
      Badger and W. II. Haywood, for the defendant.
   Rtjítin, C. J.

In the recent case of Richmond v. Van-hook, 3 Ired. Eq. 581, the opinion of the Court was given, that the proviso to the third section.of the Act of 1806 had, in its purview, only the case of a total intestacy. In that opinion, and in what was said upon the point in the case of Hurdle v. Elliot, 1 Ired. 176, there has been an entire concurrence between the four Judges who have last sat in the Court; and it is not known that any one, who ever sat here, entertained a doubt on it, excepting only from what fell, as a dictum, from Judge Henderson, in Stallings v. Stallings, 1 Dev. Eq. 298. It seems manifestly impossible to apply the proviso to a case of partial intestacy. A parol gift of a slave cannot be called an advancement for the purpose of making it a good gift, unless, also, it is to be treated as an advancement, by bringing it into hotch-pot. This last is the distinguishing property inherent in an advancement. It was not meant, by the act of 1806, to change the law of distribution at all; neither in a case of total nor partial intestacy. So far from- that, it expressly refers to the law of distribution, and makes it, as then existing, regulate, as an advancement, the parol gift, that was the subject on which the proviso operated. Now, the statute of distribution only makes gifts to children by an intestate, in his life-time, advancements; and the intestate there spoken of, is unquestionably one, who is wholly so. That is perfectly settled. Cowper v. Scott, 1 Pr. Wms. 119. Edwards v. Freeman, 2 Pr. Wms. 440. Then, a father makes a will, and there is a residue not disposed of by it, neither a gift in the will, nor one by deed or otherwise, is to be accounted for in the distribution of the residue ; not the legacy, because the Act only speaks of gifts in the father’s life-time ; and not the other gifts, because the Act speaks of gifts by an “ intestate,”” without qualification, and, further, because the law could not intend that a gift by a father, in one mode, should be brought into hotch-pot, while a gift by him, in another mode, should not; since, if it wore so, it would prevent that equality between children, which the law means to establish, where the- father has not himself created an inequality. If, then, this were a gift of any thing else but a slave, or if it were a gift of a slave by deed, the donee would hold the thing given, and also have an equal share of the personalty not disposed of, as one of the. next of kin; for such a case is not within the statute of distributions, properly speaking, but the division is made by equity, upon its maxim of equality, and the statute is taken for a guide, only in ascertaining the persons who may share ; and they take, as if the residue had been actually given to them in the will. Walton v. Walton, 14 Ves. 318. Brown v. Brown, 2 Ired. Eq. 309. It follows, necessarily, that a gift of a slave by parol cannot be within the Act, when there is a will, because there is no mode of making the donee account for it as an advancement; for it is impossible the Legislature should mean to exclude him from a share of the surplus, while a donee of slaves by deed, or of any other thing without deed, and a donee by the will, would be admitted. On the contrary, the proviso merely meant, that the gift in writing, as provided for in the body of the Act, and a parol gift followed by possession of the child, until the death of the parent, should stand on the same footing as advancements in the division of the estate not disposed of by the parent. Therefore, if the parol gift be not so made, as to render it an advancement which is to be accounted for, it cannot be an advancement at all.

The peculiar provisions of the will in this case, cannot alter the law. Although the testator only directs a sale of land, and applies the proceeds of the sale to his debts, and does not dispose of his personal property expressly, yet he does so, by implication of law. He did not die intestate. Wo administration could be granted of the estate. By appointing executors, he gives the whole to them, for the payment of his debts, and then for division among his next of kin, as the Court of Equity may direct ; that is to say, equally. If this child had held by deed, he could not have been compelled to bring the slave into hotch-pot; and, consequently, the gift by parol never became effectual, and the property vested in the executors.

Pee Curiam. Judgment affirmed.  