28 Miss. 674 | Miss. | 1855
delivered the opinion of the court.
This was a petition filed in the probate court of Kemper county by the administrators of Matthew Jackson, deceased, for a division of the personal estate of the intestate among the heirs and distributees, and requiring some of them who had received certain slaves from the intestate, by way of advancement, to bring that property into hotchpot.
The first error assigned is, that the decree for the division directed that the slaves advanced to the distributees and brought into hotchpot should be appraised at their value at that time, and not at the time when the advancements were made; and that the appraisement and apportionment were made accordingly, estimating three slaves advanced to the plaintiff in error in the year 1846 or 1847 at their value in the year 1853, at which time they were, two of them, twenty years old, and the other thirteen years of age.
It is not denied on the part of the defendants in error, that the English rule, and that which prevails in many of the States of this Union, is, that the value of the property at the time of the advancement must govern in the distribution. But this is said to be founded on the terms of the English statute of distributions, or on statutes which have been passed in those States establishing that rule; and it is insisted that a different rule must prevail under our statute, which provides, that the “ advancement shall be brought into hotchpot with the whole estate,” and that “ such party returning such advancement shall thereupon be entitled to his proper portion of the whole estate,” &c. It is contended that by the terms of this statute, the party “ bringing in ” or “ returning his advancement into the whole estate,” surrenders his title to the property so returned, and merges it in the general estate, agreeing to take from the value of the whole of it his portion, which of course must be ascertained by the valuation to be put upon the property at that time.
We do not consider this a correct view of the subject. By the terms “bringing” or “returning” the advancement “into the whole estate,” it was not intended that the party should relinquish his interest in that particular property; but it is intended to be “brought in” for the purpose of being taken into consideration in making a distribution of the entire estate, in order to ascertain whether it amounts to his full share of the estate. His title to the property is derived from the gift, and
This is the construction given by the courts of Virginia to a statute of that State, of which ours is a copy. See the statute in 2 Lomax, Ex’rs, 212, § 10. In the case of Knight v. Yarborough, 4 Rand. 568, the court of appeals say: “ In cases of intestacy, where one of the children have been advanced, if he choose 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.” And again, on p. 569: “ By the advancement, the property vests in the donee, and it is afterwards at his risk. The profits and increase are. the profits and increase of his own property; and the donor can only be regarded as having parted with the real value of the thing when given. If the property perishes, or in any way depreciates in value, it is the loss of the donee. He accounts for the value when received, because he has taken so much out of the estate of the donor. They are in all cases the fruits, in part, at least, of the care and attention of the owner; and if any expense is incurred in securing them, it falls, upon the owner of the property. It is a fundamental principle, that the person who has the title to property bears the loss arising from its destruction or deterioration, and is entitled to its increase and profits.” The same rule is held in Beckwith v. Butler, 1 Wash. 225; Hudson v. Hudson, 3 Rand. 120; 2 Lomax, Ex’rs, 216, 217.
We consider this construction as furnishing a just and practical rule, and one in accordance with the general principles governing the subject.
The seco.nd objection urged against the proceedings is, that
The rule is well settled in England that advancements brought into hotchpot shall be considered only in the division among the children, and should not go to increase the distributive share of the widow. But it is said that this is not the case under our statute which speaks of distribution of the estate brought in, among the other “parceners and distribu-tees,” which terms include the widow.
We do not consider this a sound view of the statute. Under our law the widow is entitled to a child’s part of the personal estate belonging to her husband at the time of his death. To that extent she is regarded as a distributee. We have above shown that advancements divest the title of the husband and vest it in the child; and it is only for purposes beneficial to the child that he has the privilege under the statute to bring the property advanced to him into the general estate. For all other purposes, the property advanced cannot be regarded in making distribution among the parties entitled to the assets of the estate.'
The statute compelling parties desiring their distributive shares of the estate to bring into the account what they had already received, could not have been intended to have application to any others than those who had received advancements, and could not, therefore, apply to the widow, who could not be the recipient of an advancement. And as she would have nothing to subject- to the proceeding of hotchpot, it is not to be presumed that she was intended to be embraced in its operation.
This is stated by respectable authority to be the proper construction of the Virginia statute, which is the same as our own. 2 Lomax, Exr’s, 213, §. 14; 1 Tuck. Com. 181. And it is also said to be the construction given to a similar statute in Alabama, in 13 Ala. R. 653, but which authority we have not been able to examine; and the principle on which it rests is recog-
We consider the construction contended for in behalf of the plaintiff in érror founded on good reason, and that it is the correct rule upon the subject.
But it is insisted in behalf of the defendants in error, that the plaintiff here has no right to complain, because no exceptions were taken to the commissioners’ report, and it was regularly confirmed by the court, and it does not appear that he was injured by the valuation of the slaves advanced to him and allotted to him in the partition.
The error as to the valuation of the slaves is in the decree for distribution, and was carried out in the division made under it. The writ of error certainly extends to the decree and to errors of law apparent on its face. And we think that the correct rule is, that when error of law manifestly appears, the presumption of law is that it was to the prejudice of a party complaining of it, and that the judgment will be reversed by reason of it, unless it appear by the record that it did not operate to the injury of the party complaining.
But the facts appearing of record create a presumption almost as strong as proof, that the slaves advanced to the plaintiff in error were of greater value at the time of the distribution than at the time of the advancement. It appears by the record that two of the slaves were each twenty years of age, and the other was thirteen years of age, at or about the time of division in 1853, and that they had been given to the plaintiff in error in 1846 or 1847; so that two of them were about thirteen years of age, and the other about seven years of age, at the time of the advancement. It is thus apparent to the knowledge of every one acquainted with such property, that in every probability, the slaves must have been much more valuable intrinsically at the latter than at the former period, and that the plaintiff in error must have been injured by the rule of valuation prescribed by the decree.
The decree is reversed, the commissioners’ report set aside, and the cause remanded to be proceeded with according to the principles herein stated.