
    Ann Stallings et al. v. Isaac Stallings et al.
    From Johnston.
    The second proviso to the third section of the act of 1806 {Rev. c. 701) respecting’ parol gifts of slaves, applies to the whole act, and is prospective in its operation.
    By that proviso, parol gifts of slaves to children are validated by the death and intestacy of the parent, without resuming the possession; and become effectual from the time the slaves were delivered to the children.
    ■Where slaves were delivered to a child, and remained in bis possession until the death of the parent intestate, it was held to he an advancement at the time of the delivery, and the subsequent increase was not to be valued in making’ distribution of the parent’s property, nor to be taken as an advancement to the child.
    The case of Davis v. Brooks (3 Murp. 133) approved by IIekhek-sos, Chief-Justice.
    This was a petition for an account of the personal estate, ami a division of the negroes of one Zadock Stal-lings, who had died intestate.
    A division of the latter had been made, under an order of the County Court, upoti the principles .mentioned in a case agreed, which was submitted to his Honor Judge Strange, on the last Spring Circuit, and which was as follows :
    “The intestate Zadock Stallings, in his lifetime, put into possession of several of his children, the negroes mentioned in the schedules filed by them, and which have been taken into the account in the division of the negroes of which the intestate died possessed. That the said Zadock executed no deed or other written evidence of the transaction, upon his sending the said slaves to the houses of his said children ; and that no express gift of the said slaves was made by the said Zadock to the said children, but that the said slaves were put into the possession of the said children, in the ordinary manner in which slaves are sent to the younger members of a family upon their settlement life. That the said Zadock never resumed the possession of any of the said slaves, but that they remained In the possession of the said children until the death of the said Zadock. That during the possession of the said slaws bj the said children, and before the death of the said Zadock, the said slaves increased in number and value, which increase luid not been estimated in dividing the slaves of which the said Zadcck di<d possessed, as an advancement made to the said chitar;':: by the said Zadock in his lift time.”
    Upon ¡ív> case, Ids Jiouor pronounce.! J-idgmeni confirming (he division made under the order of the County Court, from which the children who were not advanced, appealed to this Court.
    
      Bearvdi & Gaston, for the Plaintiffs.
    — The act of 1806, provides “that when, the said slave or slaves .shall remain in the possession of such child or children, at the time of the death of such person, (he or she dv lug intestate,) such slave, &<\ shall be considered as ass advancement to such child or children, and he regulated by the laws now in force relating’ to advancements made to children, by a parent in his lifetime
    
    The Judge wlio decided this case below, appeared to entertain no doubt upon the point, and in pronouncing his judgment stated, that the peculiar phraseology of the art placed the question he; end all difficulty. The particular clause in the act adverted to by his Honor, was the concluding part of it, which declares, that “ such slave, &c. shall be considered as an advancement, &c, and he regulated by the laws now in force relating to advancement!) made to children by a parent in his lifetime.”
    
    With all becoming respect for this opinion, and with due deference to the reasons upon which it is grounded, we arrive at a directly contrary conclusion, from the phraseology of the same part of the act. It may well be questioned whether this section of the act is not retrospective altogether. In the first place, it is perfectly c]ear ^jiai n() ¡ntel.est passes by the act of putting in . , .... ." , , possession — that was the very thing the act intended to prevent — it intended to abolish parol gifts. .It is the possession of the child at the death of the parent, and the intestacy of the parent, w liich united, make it an ad\ anre-inent ; not an advancement in the life of the parent, that could not be, for if is by bis death that if becomes an advancement j and the words “regulated, by the laws relating to advancements made by a parent in his Lifetime,” are to declare that this advancement, made after his deaih, is like an advancement in lii.sLifetime, lobe brought into hotchpot. The, property so put into the possession of the child, remains, during the life of the parent, the absolute estate of the parent — lie can sell it, it is liable for bis debts, lie may bequeath it away, and it is to all intents and purposes his. The meaning of the Legislature is obvious, that the not making of a will by the intestate, under the circumstances of the possession, is to be regarded as having the effect of a legacy, but declaring that it should be brought into hotchpot. Now it is admitted, asra well established rule, that the value of the advancement is to be estimated at the time when it is made, because the child may then sell it, it gi\es him credit, and if it dies, or is destroyed, still being his property, he must account for it. When, then, did this properly become an advancement, so as to enable the child to sell i The answer is, at the death of the intestate. Then the conclusion follows, its value at that time is to he estimated.
    There is smother ground upon which this point can be placed, which is decisise of the question. By this construction, perfect equality is attained; and if the matter is not clearly defined by the Legislature, so as to admit of no doubt, as the- object in all instances of hotchpot, is o quality, the Court w ill so construe it, as to effect this end. The reason why subsequent value, or increase, in the case of an advancement during the life of the intestate, is not to regarded, is, that by the gift, the property changes, and the increase afterwards accrues, when it is the properly of the donee.
    It must be perfectly dear, that, under this act, slaves which died in possession of the child, after being put into such possession fey the parent, a « noi to V regarded as ativatu c'fsu-nf, because the possession did rot continue anti i íh,k pa:•<;*,'t’s death intestate.
    
      Badger, v.itit whom was Bevereux, conha.
    
   Hall, Judge.

— By the act of 1766. (Rev. eh. 79) which points out the method of dis'rihu’dng intestate’s estates. i< is amongst other things «orcltd, “that in case any child sliali have any estate by settlement from the intestate, or shall he advanced in hind i ¡Best ate in his lifetime, by portions not equal to the shares, winch shall be (hie to the other children, by such distributions as aforesaid; then so much of the surplus of the estate of such intestate is tobe distributed to such child or children, as shall be advanced in the lifetime of the intestate, as shall make the estate of the said children to be equal, as near as can be estimated.”

By the act of 1793, (Rev. ch. 364) it is declared, “that when any person shall die intestate, who had in his life time given to, or put in possession of any of his children any personal property, such child shall cause to be given to the administrator of such estafe a» inventory, on oath, setting forth therein, the particulars by him received of the intestate in his life time.”

It appears to me, that the construction to be put upon the act of 1766 is, that advancements made by an intestate, ought to be valued at the time they were made, and not at the death of the intestate. But when the two acts aro taken together, I think there can be no doubt but that this io the proper construction. The bitter act expressly declares, that the child advanced shall give to the administrator, on oath, an inventory setting forth the particulars by him or her received of the intestate in his njeifoftg' It follows of course, as I think, ihat such particulars are to be considered the advancements made, and. their value at the time, is to be regarded as the amount of the advancements.

The act of 1806, {Rev. ch. 701) was made for the purpose of preventing frauds and perjuries in contests, respecting slates claimed from parents under parol gifts. And although it invalidated all parol gifts, made to children, so that they conk! not thereby acquire title to slaves, yet if the parent suffered the child to remain in possession of slaves thus given, during his lifetime and died intestate, the act declared, that such slaves should be considered an advancement,and should be regulated by (he laws then in force, relating to advancements made to rhildieu by a parent in his lifetime. The law intended to give the parent a power over property thus situated, but if he did not think proper to exercise it, the property should then be considered as an advancement made, as if that act had never passed.

Vi hen a child has been thus possessed of slaves, and retains uninterrupted possession, until the parent’s death, what view of the property, as an advancement, docs the act refer us to ? Not to üs situation at the parent’s death, but to the possession of the property, when first taken, and continue as an inchoate advancement, completed by the intestate’s death. It could not be completed before, because the act gave the parent the power of reclaiming it.

Considering it as an advancement, can there be any doubt, but that the child must deliver an inventory to the administrator, as the act of 1792 prescribes, setting forth therein the partículass by bin» or lies' received of the intestate, in his or her Lifetime; not the slaves that fee holds at the intestate’s death.

I admit that cases of hardship may be. supposed, ever general rule maybe adopted: as where one child ^ J 1 receives a young female slave ; another a valuable male slave, who may be a tradesman. But this only proves, that general rules will not suit a!1 individual cases.

There is certainly no hardship or injustice in the consideration, that an advancement in the bauds of an older child «bails aerease from the time he n calves if, until the p rein's death, and that it should h • tabled at the time he t eceiv ed it j because at the parent’»•alb ouch child may also have a family, and he somewhat advanced in years, and a younger child, to whom the same advancement may he made at tue father’s death, that was made to the older in his lifetime, may, when he arrives at the name age, have as great an increase in his advancement, as the older child has at that time. This is equality, and of course justice.

1 therefore think that the advancement?, should he valued at the time they are received, and not at the time of the intestate’s death.

Henderson, Chief-Justice.

— Two questions are made in this case. First, is the second proviso to the third section of the act, of 1806 prospective, or is it confined to gifts theretofore made. If it is prospective, at what time shall the slaves he valued ? At the time they were put into the possession of the child, or at the time of the parent’s death ? The first question was decided in the affirmative by this Court, in the case of Davis v Brooks (3 Murp. 133). Toe last question has not heretofore arisen. Were we disposed to re-examine the first question, we see no reason to doubt the correctness of the decision in Davis v. Brooks. The proviso can only be confined to gifts theretofore made, by considering it to be a proviso confined to the third section, where it is placed, and not applicable to the first, os* rather to the whole act, its spirit being contained in the first section. The proviso withdraws the case made in if From the operation of the rule created by tlie act itself, which case W()Ujj ¡iav0 i)ee;; within that rule, but for the proviso.— Y|)e ,.i:]e prescribed in the third section of the act, relates to the time In which salts shall he brought on parol gifts of slaves, made before the passing of the act. The case made in this proviso could not have fallen within the operation of that rale, for that rule fixes the time within which those who are out of possession, shall bring their actions. The case made in the proviso is, where the claimant is in possession, and cannot bring an action. He therefore needs not the aid of the proviso to shield himself from the operation of the rule created by the third section, for it cannot reach him. Neither can the least reliance be placed on the phraseology of the proviso, thereby to confine it to past transactions. The legislature looked to the death of the parent, as a consummation of the transaction. The fact of placing the property in the possession of the child was only inceptive, looking to”'the death of the parent for its consummation. The expression “ shall have put,” was proper, to make the case intended to be embraced by the proviso, for the placing in possession, must necessarily have preceded the death of the parent. On the contrary, if the proviso is considered as withdrawing the case made by it from the operation of the first section, it is plain, sensible and intelligible. That section declares, that no gift thereafter to be made of any slave, shall be good, unless the same shall he in writing. The case made in the proviso is, a gift of a slave, and not in writing, which the Legislature declared should he good. That can only he effected, by withdrawing from the operation of the first section, the case supposed in the proviso, it is therefore a proviso to that section, which being entirely prospective, the proviso has of necessity the same character, and is prospective also. Most usually, to be sure, a proviso is to be taken as an exception to, or as belonging to tke [section in which it is found. But this is not necessarily the case ; where, from its nature, it cannot form an ex-I ception to the rule prescribed in the section of which it is placed, it must be referred to some other part of the act. It cannot be referred to that where it is placed in this case, for it there would lose its essential quality. — > I have been induced to go at large into this question, from the zeal with which this point was pressed upon the Court, notwithstanding the case of Davis v. Brooks, and the general impression of the profession.

This case then presents the second question, above stated, it. is the death of the parent internn'e, which validates and makes good the gift. Without this requisite, the case would fall clearly-within the first section of the act. With it, it stands confirmed, as if lite act, had never beers passed. The act of putting the property into the possession of the child makes the gift, if it be not subsequently revoked — or (should Ihecxpre-sion be prefered) if consummated by the parent’s permitting the slave to remain with the child, and djing intestate, either wholly, oras to the particular slave. For shook! a will be made, and tin» property thus git era not disposed of — that is, should the parent die intestate as to it, the case would be still within the proviso, so far as to malte the gift good. For however we may be disposed to follow up the erroneous derisions of this Court on the. question of advancements’, and bringing into hotchpot, ir is evident, that there is no such thing as bringing into hotchpot upon; a partial intestacy. When Í saj there is no such thing, I mean that then should be no such thing. The princi-pie upon which hotchpot is founded is against. It $ and however the cases may stand, no analogies can he drawn from the»). It is not a gift at the death, hut at the time the slave was placed in the possession of the child, and the, siircumst,anees stated in the proviso are evidence, in the estimation of the Legislature equal to that which is regata'!1 f0 a valid gift by the first section. The Legislature has placed both cases on the same ground. Were it notso, what is to become of the issue of the slave born afterwards — no provision being made by the actas to that $ it speaking only of the slaves placed in the possession of the child. The case so warmly pressed by the Plaintiffs Counsel, docs not at all improve this construction; to wit, the withdrawal of the mother from the possession of the child. Its only effect would be, to prevent the operation of this proviso as to the mother ; it would leave her issue to be affected by it. Neither is it correct to say, that the property must be valued at the time the gift was perfected, it should be valued as it was when the parent intended to pass the jnoperiy. The change of possession has the character of a gift; hut it wanted the evidence of intent, which the Legislature required fay the first section, to make it valid, viz. a writing evidencing an intent to give. In the proviso, they substituted what they deemed equivalent to writing. The substitute did not consist of a single art, but of a series of acts. The property did not pass until all were completed. But when completed, it was a gift, and a gift from the commencement. For the transaction is entire; it cannot he divided. The first step is as necessary as the last; all the parts compose the whole. To make it a gift only from the death of the parent, would be to disregard one of the most essential qualities of a gift, the delivery of possession. In (he opinion of the Legislature, the mischiefs intended to be prevented by the first section, the setting up of spurious gifts by perjury and misconception, would not arise in the case within the proviso. They therefore, not only withdrew that case from the operation of flic act, but validated it, and made it a good gift. 'What was made a valid gift ? The delivery of possession— the only part of the transaction, which, on its' face, bore the character of a gift. The other circumstances aro only evidences of that intent, and aro in the nature nf a ".i.ui:; in:1-iU:i:, v. Lids relates bark, ar.d valídalos Ike act COHÍifim (!.

A contrary exposition worn! be attended with the most unjust < ouficqucnccs;. Property in placed in the hands «f two children, with one is {-Jam! a young woman, whose maintenance, with that other issue, is a burden, far bej ond the value of their set-vires ; viffi the oilier is placid a male slave in «he prime nt life, i> is worn out entirely i:t the service of the child, and , f the ¡tatcut’s death is worth nothing;. If the property in to fce valued as it is then, one child riot only lab for the other, but for one who has already drawn largely from the stock on which he had no greater claim than the first. The elder children have also a claim to an advancement in the life-time of their parents, not generally adverted to, but equal to those of the younger, if a distribution of the whole of the parent’s estate is postponed until his death, that is, takes place at the same time, the younger children receive equally with those whose claims have been long delayed, and which, to make them all equal, should have drawn something like interest or increase for the, delay. The claims of children do not fail on the parent to the same amount at the same time, hut at different times, in different amounts, according to their respective ages. The mode of valuing property, at the time the parent places it in the possession of a child, preserves this equally; the other destroys it. Upon the whole, l consider this as an advancement made when the slaves were placed with tire children, and like all other advancements to be valued at that time, or when made.

Per Curiam.

— Let the decree be affirmed,,  