
    Sir Jonathan Beckwith v. Beckwith Butler, and Others.
    October Term, 1793.
    Equity Pleading —Answer —Effect as Evidence of Affirmative Facts. — An answer in Chancery is not evidence in favor of the defendant, as to affirmative facts, in opposition to the plaintiff’s demand.
    Deeds — Capacity—At What Time Evidence of At-testingWitnesses to Be Regarded.-: — Upon a charge of fraud in obtaining a deed or will, or incapacity in the testator, the evidence of the attesting witnesses as to capacity at the time of executing the instrument, is chiefly to be regarded.
    Advancements — Hotchpot—interest and Increase of Siaves. — Where a child is advanced with money or negroes, the donee is not bound to bring in hotch-pot, the interest of the one, or the increase of the other.
    The appellees filed their bill in the High Court of Chancery, praying for a distribution of the personal estate of Sir Marma-duke Beckwith, and to set aside a deed made by Sir Marmaduke to the appellant for 14 slaves, upon a suggestion of fraud in the obtaining of it, and for a division of them amongst the representatives.
    The defendant in his answer denies the fraud in obtaining the deed, and contends that it was but a reasonable provision for him, the heir of the family and title, otherwise unadvanced. He states that there were little other estate except a debt due by bond from Col. Tayloe which his father gave him in his lifetime as a compensation for his having consented to the sale of a large English estate which would have descended to him.
    The allegation in the answer respecting the gift of Tayloe’s bond is not supported by testimony.
    The Chancellor having directed an account of advancements made by Sir Mar-maduke Beckwith to his children and grandchildren with the value of such advancements, also an account of the value of such of the slaves, named in the deed from the said Sir Marmaduke to the defendant Jonathan Beckwith and their increase, as were living, a report was made, to which sundry exceptions were taken by the defendant. These exceptions being over-ruled by the court, the defendant was decreed to pay (out of the estate of his intestate in his hands to be administered) to Beckwith Butler ¿£610: 12: 434 and to Lawrence Butler ^£813: 2: 334 with interest from the 1st of September 1781 appearing by the said report to be due to them. From this decree Beckwith appealed.
    Warden and Washington for the appellant.
    Campbell for the appellees.
    
      
      Equity Pleading — Answer—Effect as Evidence of Affirmative Facts. — The rule is well settled, that the answer of a defendant in chancery is not evidence where it asserts a right affirmatively in opposition to the plaintiff’s demand, but he is, in such case, as much bound to establish it by independent testimony as the plaintiff is to sustain his bill. Paynes v. Coles, 1 Munf. 395, citing Beckwith v. Butler, 1 Wash. 224. See also, citing the principal case on this question, Robinson v. Cathcart, 20 Fed. Cas. 990; Moore v. George, 10 Leigh 248; Lewis v. Mason, 84 Va. 738, 10 S. E. Rep. 529; foot-note to Maupin v. Whiting, 1 Call 224; foot-note to Lewis v. Caperton, 8 Gratt. 148. See monographic note on “Answers in Equity Pleading” appended to Tate v. Vance, 27 Gratt. 571.
    
    
      
      wills — Capacity of Testator. — The principal case is cited in Spencer v. Moore. 4 Call 427 (see foot-note); Buckey v. Buckey. 38 W. Va. 175, 18 S. E. Rep. 386. See also, foot-note to Beverley v. Walden, 20 Gratt. 147.
    
    
      
      Advancements — Hotchpot—Interest and Profits. — In Knight v. Yarborough, 4 Rand. 568, it is said: “In cases of intestacy, when one of the children has been advanced, if he chooses to bring his advancement into hotchpot, he does not thereby renounce his title, but retains it, and is entitled to have so much of the intestate’s estate as will, with what he has already received, make his part equal to that of the other children: and in such case, his advancement is valued at what it was worth at the time it was made; which value is added to the distributable fund, without interest or any account for profits. This was the rule adopted in Beckwith v. Butler. 1 Wash. 224, and has been adopted also in Massachusetts and Pennsylvania; and this seems to be the rule in England.” On this question, the principal case is also cited in Williams v. Stonestreet, 3 Rand. 561; Chinn v. Murray, 4 Gratt. 379, 396; Kyle v. Conrad, 25 W. Va. 781, 783; foot-note to Knight v. Oliver, 12 Gratt. 33: foot-note to Kean v. Welch, 1 Gratt. 403. See monographic note on “Advancements” appended to Watkins v. Young, 31 Gratt. 84.
    
   *The PRESIDENT

delivered the opinion of the Court.

The answer of a defendant in chancery is not evidence where it asserts a right affirmatively in opposition to the plaintiffs demand. In such a case, he is as much bound to establish it by indifferent testimony, as the plaintiff is to sustain his bill. The appellant, who is the heir at law and executor of his father, swears in his answer, that the father in his life-time gave him Tayloe’s bond, the amount of which forms the great bulk of the personal estate sought to be distributed. It would be monstrous indeed, if an executor when called upon to account, were permitted to swear himself into a title to part of his testator’s estate.

As to the fraud charged in the bill, in the obtaining of a deed for the 14 negroes, it is not sufficiently proved. Some of the witnesses prove an incapacity in the donor to contract at certain times: but the subscribing w'itnesses swear to his capacity at the time of executing the deed, and as the settlement is by no means an unreasonable one, the court think it most proper and safe to establish it. It resembles the case of a will which was contested in this court, where the proof as to the state of the testators mind, when the will was signed, overcame all the testimony respecting his capacity both before and after. But then the negroes conveyed by this deed must be considered as an advancement, as to which a question was made at the bar, whether the encrease of the slaves, and interest on money advancements ought to be brought into hotchpot? The court are of opinion, that where a child is advanced with money, or negroes, he need not bring into hotchpot the encrease of the one, or account for the interest upon the other. For as he must sustain the loss, by accounting for the property at its value when given, and by supporting and raising the negroes, so he is entitled to the encrease of them. There does seem to be a hardship, where one son has been advanced for many years, that he should account with an unadvanced child only for the principal; yet no better rule than the above can be adopted.

Some objections were made at the bar to the mode pursued by the master, in ascertaining the value of the negroes advanced; but we are of opinion, that though the value seems to have been guessed at, it does not appear to be unreasonable either way, and as no exception is taken to the report, the objections now made ought not to be regarded.

The report is in favor of all the plaintiffs and is confirmed by the Chancellor. Yet a decree is given in favor of the Butlers Jfonly, without noticing Marmaduke Beckwith, another of the plaintiffs. This we suppose to have been a mistake of the clerk.

The decree therefore must be affirmed so far as it goes, and the cause remitted to the High Court of Chancery, for a hearing as to Marmaduke Beckwith.  