Kyle v. Conrad

25 W. Va. 760 | W. Va. | 1885

G-reeN, Judse :

The errors assigned in the petition for an appeal in the próceedings in this cause, which, if they be errors, are all carried into the last decree entered by the court, helow in this cause, are, first: 'That the court authorized interest to be charged upon the estimated value of the lands conveyed to the several daughters of Hlery Conrad from the date of his death; second: That interest on the money-value of the lauds was not, as it should have been on the theory of a moneyed hotchpot, charged only from a period twelve months after Ulery Conrad’s death; third: That the children of the different daughters of Hlery Conrad, to whom jointly with their mothers lands had been conveyed, ought to have been made parties, though their mothers were still living, whereas none of these children were made parties except in cases where their mother was dead; fourth: That the daughters of Hlery Conrad were charged with the full value of the land conveyed to them by their father as an advancement. They should have been charged only as an advancement and be required to bring into hotchpot what the father had given to the daughters individually, and not what he had given to them and their children jointly. These daughters had from five to thirteen children, as the record shows, and therefore they had in the land deeded to them and their children only from one fifth to one thirteenth part of the land given to the daughters individually, and thej^ should have been charged only from one fifth to one thirteenth part of the value of these lands instead oí being charged with the full value of the lands as an advancement. These are all the errors assigned or relied upon in the argument of the counsel for the appellants; and as there are no errors, which I can see, in this record, if these are not errors, I shall confine my attention to these alleged errors.

It is claimed by the counsel for the appellees, that this Court can not consider these assigned errors, because, as the last report of the commissioner was not excepted to, the parties waived all objections to it, even though they had filed exceptions to previous reports containing the assigned errors; and they rely upon Kees, Executor v. Kees’s Creditors, 2 Grat. 117, syl. 2, and Simmons v. Simmons’s Administrator, 33 Grat. 451, syl. 2. These cases certainly establish the position, that, unless errors appear upon the face of a report, they can not be taken advantage of for the first time in the Appellate Court, when no exceptions were taken to the report in the court below ; and that air error in a commissioner’s report not appearing on its face, and to which no exception was filed in the court below, will be disregarded by the Appellate Court, even though the identical error had been .committed in the making of a previous report, and it had then beeu excepted to, and the cause had been remanded to the commissioner without deciding on this exception; for in such a case this error not being excepted to in the last report of the commissioner will be regarded as waived by the parties, who on account of it had excepted to a former report. But this principle has no application in this case. For the court itself in the decree of April 8, 1879, had expressly decided, that the daughters of TJlery Conrad, to whom and their children jointly lands had been given and conveyed, were chargeable with the whole value of such real estate, and not with the value of the undivided interest of the daughters. It is of this decision carried into the last decree, that the appellants complain in their fourth ground of eiTor, and not of the commissioner’s report; for he could not’commit error in following the directions of the court. The same is true of all the other supposed errors, of which the applicants complain.

Thus their first assignment of error, that the court erred in authorizing interest to be charged on the estimated value of the lands'advanced to the daughters from the date of the death of ITlery Conrad. Now this was no error of the commissioner; form the decree of April 8,1879, the court expressly directs the commissioner to charge interest on the value of the land in this manner, and it was the duty of the commissioner to follow this direction, and he would have been eom-.pelled to do so by the court. It was therefore obviously useless to except to the report ot the commissioner, because he had followed, the directions of the court in making his report. It was no error in the commissioner; if an error at all, it was one committed by the court, which of course can be examined into by this Court. The same may be said of the second assignment of error by the appellants; and the third is one, which has no relation to the commissioner’s report. The court could have decided these matters, of which the appellants complain, even if there had been no exceptions to the commissioner’s report, as they were put in issue by the pleadings, these issues having been made by the answers of defendants, which were filed on October 4, 1876. And even if the courts had not decided these points, they could have been considered by this Court, as they were errors of law, if errors at all, appearing on the face of the commissioner’s report, which might therefore have been considered by this Court, even though there had been no exceptions to the commissioner’s report filed in the coui’t below.

The most important of these alleged errors is that contained in the plaintiff’s fourth assignment of error, that is, that the value of the entire tracts of land were regarded as advancements to the daughters, when they were not conveyed to them, but to them and their children as joint-tenants, which gave them a very small interest in the land, and they should have been held to have been advanced only to the extent of the value of their several interests, and not to the extent of the whole value of the land. To sustain this position they rely solely upon the wording of our statute on the subject, which is: “ When any descendant of a person dying intestate as to his estate or any part thereof, shall have received from any intestate in his lifetime any estate, real or personal by way of advancement, and he or any descendants of his shall come into the partition and distribution of the estate with other par-ceners and distributees, such advancements shall be brought into hotchpot with the whole estate real and personal, de-scencled or distributable, and thereupon such party shall be entitled to his proper portion of the estate real and personal.” It is insisted, that under the very words of this statute, if a daughter has had a conveyance of a tract of land to her and her children as joint-tenants by way of advance-, ment, she can not be regarded as having received from her father anything but such portion of this tract of land, as she asoné of the joint-tenants is absolutely entitled to, and that she ought to be required to bring into hotchpot onty this undivided interest in this tract of land, which she owns as such joint-tenant, precisely as if her father by a separate deed had conveyed to her by way of advancement such undivided part of the tract of land; and that the uniting of her children as grantees in the deed and the conveying of the whole tract of land to her and her children jointly as an advancement cannot justify under the wording of this statute, the requiring of her to bring the value of the entire tract in hotchpot.

Statutes requiring heirs and distributees of a person, who dies intestate, to bring into hotchpot in the distribution of the estate, what had been received by them as advancements from such person in his lifetime, have always been construed very liberally to carry out the purpose of such acts, to produce equality in the distribution of the intestate’s estate among those bearing the relation to him, which in the absence of a will must be presumed to have been the wish of the deceased person. And if by following closely the letter of the statute this its object will be defeated, the courts have never hesitated to disregard th& letter of such statutes and to require that to be brought into hotchpot, which the. letter of the statute does not require, but which its spirit does require. By the word advancement used in the statute is meant a gift by a parent to a child or descendant for the purpose of advancing him or her in Ufe. Barber v. Taylor, 9 Dana 84, is a good illustration of the liberality which the courts have always exercised in construing such statutes, in order to carry out their spirit, even though in so doing the letter of the statute is disregarded. The Kentucky statute was copied from the fifteenth section of the act of Virginia of 1785, directing the course of descents, and was thus woi’ded : “ That when any children of the intestate or their issue shall have received from the intestate in his lifetime any real estate by way of advancement, and shall choose to come into partition with other parceners, such advancement shall be brought into hotchpot with the estate descended.” The act requiring advancements of personal estate to be brought into hotchpot was substantially the same.

It will be seen at a glance, that, so far as the question before us is concerned, our statute is worded almost exactly, as was the act of 1785, and as was the Kentucky statute; yet under these statutes in Barber and others v. Taylor’s Heirs, 9 Dana 84, it was decided, that a conveyance made by. the father to the husband of his daughter by way of advancement to his daughter, was to be regarded as an advancement to the daughter. As this amounts-to a construction of our statute, I will quote at some length the reasoning of the court, which led to this construction of our statute. The court say on page 85:

“ Except as to the period of valuation these enactments of the Kentucky statute are substantially like the 5th section of the statute of distributions, enacted in England in the 22d and 23d Car. II, ch. 10, and therefore the judicial interpretation of the latter, established when the former was created, should be deemed equally applicable to these cases. In Edwards v. Freeman, 2 P. Wms. 435, which is the leading case on the subject, it was decided, that in determining all questions concerning advancements the object and intention of the father who gave are to be chiefly considered; that a provision to take effect after the death of the father or in reversion or even contingently, whenever it can be deemed of value, may be considered as an advancement fro tanto ; that equality was the great object of the statute, which should therefore be considered as a parliamentary loill,’ and consequently, that a settlement, secured before marriage and in consideration thereof, upon a then unborn first daughter of the party making it should after his death intestate be deemed an advancement, which should be brought into hotchpot.

“And in Wayland v. Wayland, 2 Atk. 635, Lord Hardwick decided, that a settlement on a son for life, remainder to his wife and then to his children, should be considered as an advancement to the son to the whole extent of the value of the entire estate, even though he had received only a life-estate and his wife, a stranger in blood to his father, was by the terms of the gift entitled contingently to the life-estate in remainder. These doctrines seem to us to be as just and reasonable as they are undoubtedly authoritative. They virtually recognize as a controlling principle the intestate father’s intention; and therefore virtually decide that whatever he intended as an advancement, and would have so treated, at his death should generally, if not invariably, be so considered without regard to the mode of making or securing the actual enjoyment of it, concerning all which he should be the sole arbiter. And therefore there could be no doubt that, if a father should vest in’ a stranger the title to property, in trust for a daughter, the estate thus intended for her by such a provision should generally be deemed an advancement, even though by the mal-conduct of the trustee she had lost the whole benefit of the provision.

“A gift of money or other personal property to the husband of the donor’s daughter, though the husband by wasting or loosing it might prevent his wife from deriving any benefit from it. So land given in frank marriage to the husband and wife and to the survivor of them and their issue in tail, the wife being the daughter of the giver, would be an advancement to her, to the full extent of the value of the entire estate, although the husband might survive her, and might also dock the entail, and thereby monopolize the whole estate, 'yet in distributing the intestate father’s estate, her children would be charged with the value of the estate, thus enjoyed and converted by their, father, because their grandfather so intended and provided, and because the object of the statute was to distribute his estate as he himself would have done or may be presumed to have intended. Nor could we doubt that a conveyance of land to the husband of the conveyor’s daughter, in consideration of his being her husband, should be considered as an advancement to her, just as much as if the conveyance had been to herself alone, or to her and her husband as tenants of the entirety. ********=1= It is not material to enquire whether the fee should be an advancement to Mrs. Barber or to her children, or to all of them in succession. Her children only represent her, and can be entitled to no more than she would be entitled to, were sbe now living; and if she were yet alive we could not doubt, that sbe would be justly and legally chargeable with the land conveyed to her husband, as so much received by her from her father, in the manner deemed best for her by him.”

Judge Lomax in his work on Executors vol. 2 page 367, treats these two English decisions above cited as properly construing the Virginia statutes with reference to hotchpot, which were substantially the same as the English 22 and 23 Car. IT, eh. 10 sec. 5, and as our statute above quoted (Code of West Virginia, eh. 78 see. 13 page 486)' We regard these English cases as authoritative constructions of our statute and entirely approve the quotations above given from 9th Dana, and adopt them as our construction of our statute.

These views were approved in Stevenson, &c. v. Martin, &c., 11 Barb. 485, where it was decided that “the intention of the donor to advance his daughter will be 'presumed from the fact that he conveys to the husband upon the sole consideration of the existence of the marriage-relation between them. But if she be dead at the time of the conveyance no such presumption will be entertained as a against her children.” See syllabus 2. These views were again approved in Bowles v. Winchester, £c., 13 Barb. 1, and they were there applied to a case where the devise (and it was stated to apply equally to a conveyance) was made by a father to his daughter during her natural life and at'her death to her living issue; and if. she died without leaving issue, then the property was to revert to the heirs of the father. The court held that this was an advancement to the daughter of the whole land, as if she had been given a fee simple and not a life-estate, and she was charged with the fee simple, value of the land as an advancement to her. The land was in that case devised by the father to his daughter, Mrs. Winchester, for life and then to her children, and the father died intestate as to a part of his estate worth $100,000.00. The question was what Mrs. Winchester should bring into hotchpot in the partition and distribution of .this $100,000.00, as to which her father died intestate. The court says on page 9: “A devise was made to Mrs. Winchester giving her an estate for life and then to her children. The object of the testator was to provide for his daughter and her descendants, and whether so or not this is the effect of this provision of his will; and we see no injustice in recognizing the rule, that, when the estate passes to the tenant for life and then to her issue born or to be born and no children in being at the death of the devisor, the tenant for life must bear the burden in order to equalize the'heirs; nor will the Chancellor speculate upon the probability of there being issue in order to estimate the value of such a contingent interest with a view of relieving the life-tenant. There must be a fixed and uniform rule on the subject.” This decision fully sustains the court below in its decree of Api’il 8, 1879, in its opinion that “Ulery Conrad intended the the real estate conveyed to his daughters and their children to be advancemnts out of his estate to each of them to the extent of the value of such real estate to each conveyed.” In fact it does not go as far as the case of Bowles v. Winchester and. others, 13 Barb. 1. The land in that case was given to the daughter and her children after her death with a provision in a certain contingency, that it should go to the heirs of the father, yet the court regarded it as an advance to the daughter to the extent of thefee simple value of the real estate given, the court declining to make any deduction from the jee simple value of the land as an advancement to the daughter, because on a contingency it might at some time go to neither her nor her children.

• The principles laid down in these English and Kentucky cases acted upon in Needles v. Needles, 7 Ohio St. 432, and in Ditten’s administrator v. Cluney’s executors, 22 Ohio St. 436, and in Wagner’s Appeal — Duval’s estate, 8 Pa. St. 122, syl. 2, where it was said, that a deed to a daughter for life only remainder to her children was an advancement to her. On page 127, the court say : “ Such a settlement to Mrs. Wagner for life remainder to her children is regarded as an advancement under our intestate laws, as it was in England under the statute, Car. 22 & 23, ch. 10, sec 5.”

The counsel for the appellants insists, that as the deeds made by Ulery Conrad to his daughter, Timna Hammer, and her children, Asenith Davis and her children, and to Delilah Davis and her children, were made in “ consideratou of the natural love and affection, which he had for his daughters severally and their children severally and of one dollar;” that this indicates clearly, that these gifts of land were in part made to the children of the several daughters because of his natural love and affection for them, and therefore to the extent of the interest of these children of these daughters in these lands it can not be regarded as an advancement to his daughters. But if these deeds had nothing in them to indicate, that they were made by way of advancement to the daughters severally, except the fact that they were made “in consideration of the natural love'and affection of the father for his daughters and their children, and conveyed the land to the daughters and their children,” they would have been regarded to the extent of the fee simple value of the land conveyed as advancements to the daughters. For the love and affection for the children of the daughter could be regarded by the court as love and affection for their children as the offspring of the daughters. This seems to me to be obviously the interpretation, which would always be given, when a deed conveys land jointly to a daughter and her children. Butin the case before us, that this was the true meaning of IJlery Conrad, is most obvious on the face of the deeds; for he conveys the lauds to these three daughters severally and to their children and declares on the face of the deed, that there shall be included among the beneficiaries the children of these daughters thereafter born. As a matter of course he could not possibly have an affection for these unborn children except as the offspring of his daughters. He could not have lor unborn persons any personal love or affection. That his intent in making these deeds was simply by way of advancement to his daughters severally is obvious from the fact, that at the same time he made a deed to one of his daughters and her children including her after-born children, for his natural love and affection for her and her children, he made another like deed for a tract of land to another daughter, Delilah Hammer, and her children born and to be born, in which the consideration is recited to be “natural love and affection for the daughter” and not as in the other cases “natural love and affection for his daughter and her children.” It is impossible to suppose that Dlery Conrad regarded this last deed as an advancement to his daughter of the fee simple, value of the entire tract conveyed but regarded the other three as advancements of only a small proportional part of the land conveyed.

The case of Edwards v. Freeman, 2 P. Wms. 435, and Wayland v. Wayland, 2 Atk. 635, show, that a deed to a daughter and her children or a deed for their use will be regarded as an advancement to the value ia. fee simple of all the land conveyed, whatever may be the form or conditions of the deed, provided it was intended as an advancement of the daughter, and this will be presumed, unless the lands conveyed were purchased. Even though they were thus settled at the time of the marriage of the daughter and might in a certain sense have been considered as conveyed for a valuable consideration, marriage being a valuable consideration, yet lands so settled in a marriage-settlement on a daughter and her children or any of them is considered as an advancement to the daughter to the full value of the fee simple in the land so settled. I am therefore, of opinion, that the conveyance to the four daughters of Ulery Conrad, and their children, by their father must be regarded as an advancement to the daughters of the fee simple value of the land so conveyed, and that the circuit court of Pendleton county did not err in its decree of April 3, 1879, in declaring that “ TJleiy Coni'ad intended the real estate conveyed to his daughters and their children to be advancements to each of them to the extent of the value of such real estate so conveyed to each daughter.”

The next enquiry is : As of what date ought advancements whether real or personal estate to be valued ?” Unless under peculiar circumstances, as when perhaps the advancement is a remainder, (See Chein et al. v. Murray et al.-) the rule is established in Virginia as well as elsewhere, that all advancements. are to be accounted for as of the value they bore when received, and that during the life of the intestate, rents, issues and profits should be charged against the heir or devisee. (Beckwith v. Buller, 1 Wash. 224; Hudson v. Hudson’s Executor, 3 Rand. 120; Williams v. Stonestreet, 3 Rand. 559; Christian v. Coleman, 3 Leigh. 30; Knight v. Oliver, 12 Grat. 33; Puryear v. Cabell, 24 Grat. 260.) The reasons for valuing advancements as of the time they were received and not as of the time of the death oí the intestate are several, first: Because from the time that the real or personal property is received as an advancement, it is the property oí the party receiving it, and if it is lost in whole or in part by destruction or deterioration, it is the loss of the party by whom-it is owned, and it is but fair, to compensate the party, to whom such property is advanced for this risk of loss, that, if the property is increased in value, he should have the benefit of the increase. (Beckwith v. Buller, 1 Wash. 225; Kean v. Welset al., 1 Grat. 406; Knight v. Yarborough, 4 Rand. 569;) second : Interest during the lifetime of the intestate ought not to be charged; for if charged it would defeat the main object of the statute requiring advancements to be brought.into hotchpot, which is to produce equality among all the children of an intestate father. “ Advancements are generally made to enable the child to engage with advantage at the proper age in the occupation by which he expects to make his living. If each child is advanced at the same age to the same amount, each is advanced equally, although one be advanced twenty years before the other, each having the same capital advanced for his establisment in life.” (Judge Green’s opinion in Knight v. Yarborough, 4 Grat. 569.)

The circuit court in this cause by its decree of January 19, 1882, properly directed, that “the advancements to each of the sons and daughters of TJlery Conrad deceased, either in money, or lands should be charged as of the value at the time the advancements were made.” It only remains now to enquire whether in this decree the circuit court erred in adding, that each child was to be charged “with interest on the said value from the death of their father TJlery Conrad.”. It seems to me as quite obvious, that, if we would carry out the spirit of our law requiring advancements to be brought into hotchpot, interest must be charged on the value of all advancements whether in real or personal property from the death of the intestate. The spirit of the law is, that by this hotchpot equality shall be produced on the death of the intestate, it being very properly presumed, that, if a will had been made those, who stood in the same relation to the deceased, would at his death be made equal in the distribution and division of his estate both personal and real. To effect this at the death of the intestate all the property, which he has given by way of advancement to any of his children, is regarded at his death as thrown into hotchpot and treated for the moment in dividing and distributing his estate among his children, as though it had remained in the possession of the intestate and had not been given away in his lifetime. If this division and distribution of the intestate’s property happens for any reason not to be made at the death of the intestate, but is postponed or delayed for years, it would seem perfectly obvious, that this ought not to prejudice the right of any of the children or to be allowed to so operate, as to be of benefit to some children while an injury to others. The children, to whom advancements had been made, ought not to be benefited to the prejudice of those to whom no advancements had been made, by the fact, that by accident or necessity or by the conduct, it may be, of the children, to whom advancements had been made, the distribution and division of their intestate father had been delayed for many years. This can only be prevented by charging interest on the value of all advancements, whether they be in real or in personal property, from the death of the intestate father. In that way only can equality as of the date of the death of the father be produced; and this is the object and purpose of the law. There is no case in Virginia, which gives any countenance to the idea, that the children, to whom advancements may have been made, should hold possession of the real or personal property advanced to them for years after the death of their father and pay no interest on the value of their advancements, simply because for any reason the division and distribution of the estate of the father happens to have been delayed for years.

We have seen that interest on advancements is not to be charged from the time the advancements were made. If any interest is to. be charged at all, there remains no other period, from which interest can be charged, except the death of the intestate. Though owing to the brevity of the opinion in certain Virginia cases it does not appear very distinctly, that this was the date fixed upon, and though for like reasons it is sometimes said in general language, that no interest should be charged on advancements, yet the true meaning in such cases is, that interest should not be charged from the date of the time the advancement was made, that being the real point under consideration. Take for instance the oldest case in the Virginia reports, the case of Beckwith v. Butler, 1 Wash. 225. The court says: “ The court is of opinion, that when'a‘child is advanced with money or negroes, he need not bring into hotchpot the increase of the one or account for interest upon the other. For as he must sustain the loss by accounting for the property, when given, and by supporting and raising the negroes, so he is entitled to the increase of them. There does seem to be a hardship, where one has been advanced for many years, that he should account with an un-advanced child only for the principal. Yet no better rule than the above can be adopted.” An examination of this case will show clearly, that the court by this meant: First, that the advanced child should be charged with the value of the property when advanced and not with the value of the property when the intestate died, nor when the estate was actually divided and distributed; and second, that the advanced child should not be charged with the increase of the property, nor with interest on it from the time it was advanced. But it did not mean, that the advanced child should not be charged with any interest at all, when the distribution and division of the property took place years after the death of the intestate, as it usually does. For in that very case the advanced children were charged with interest on the value of the advanced property from September 1, 1781, and yet the final division and distribution of the property of the intestate did not actually take place till 1793, some twelve years after the interest was ■ charged on the value of the property advanced. (See 1 Wash, foot of page 224, andpage226.) Whileit doesnotfrom this imperfect report appear why interest was charged from September 1, 1881, on the advancement, yet I have no doubt, that it was because the intestate died at that date. I can conceive of no other reason for this being fixed as the date from which interest was to be charged to all children, to whom advancements had been made. So understanding this decision, I find it fully sustained by all the subsequent Virginia eases, in which the question as to time from which interest was to be charged was involved.

Thus it appears in the case of Knight v. Yarborough, 4 Band. 568, 571, when the decision was based upon the assumption, that where property is advanced and is required to brought into hotchpot, the party, to whom it is advanced, should be charged with the value of the property, when it was advanced, and with interest on it from the death of the intestate. In this instance the property advanced was personal property. In Knight and wife v. Oliver et als, 12 Grat. 33, interest was charged on advancements of personal property from the death of the intestate. In the case of Purger et als v. Cabell et als, 24 Grat. 260, as explained by the same case on a second appeal (27 Grat. 902), I understand the same principle was applied, that is, the charging of interest on advancements of property from the death of the intestate. In that case the advancements were not real estate, and some of the advancements were made by the father in his lifetime, and by lfis will he authorized his widow, to whom he gave a life-estate, .to make other advancements to his children, and he directed, that at her death his estate including these advancements should be equally divided among his children. It was held, that interest should be charged on these advancements from the death of the widow, till the time of the division, six years afterwards. In that case the time, wUen all the children were tobe made equal, was the death of the widow by the express provisions of the father’s will. When there is no will of the father, then the time, at which all of the children are to be made equal, is the death of the testator, as is fairly to be deduced from the decision of Knight v. Oliver et als, 12 Grat. 33. There is no where any intimation, that there is any difference as to the time, when interest should be charged against a party, whether the advancement be of personal or real property ; and there is no ground for any distinction being drawn, for on the death of the intestate the interest of the distribu-tees is as fixed and determined on the death of the intestate as that of the heir. The equality sought by the law requiring real and personal property advanced to a child to be brought into hotchpot is equality at the death of the intestate; and therefore in both cases interest is charged on the value of the propeily at the time it was advanced, the interest to be from the death of the intestate. The fact, that for the con-veuience of the persoual representative he can not be compelled to make distribution in less than a year after the death of their intestate, has, it seems to me, nothing to do with the time, from which advancements of personal property are to bear interest. They like real estate bear interest from the date that the law intends equality among'the children to be established, that is, from the death of the intestate. I have seen no authorities, which draw a distinction in this respect between real and personal property advanced; and I consider that there is no difference.

The case relied upon by the appellants’ counsel as not in accord with the views which I have expressed, is Barrett & wife v. Morris’s executors et al. 33 Grat. 273. In that case the father did not die intestate but left a will, in which he sets out the advancements he had made to each of his four children : to one $31,000.00; to the second, $32,891.00; to the third, $34,000.00, and to the fourth, $35,112.00. The will directed, that no sale of his real estate should be made during the life of his widow, who was to receive an annuity of $2,000.00 a year out of the rents, profits and income of his estate. He further directed, that after his debts, devises and bequests should have béen paid and satisfied, the remainder of his estate should be divided into four shares, so that the first share together with the $31,000.00 advanced to the-first child, the second share together with $32,891.00 advanced to the second child, the third share together with $34,000.00 advanced to the third child, and the fourth share together with $35,121.00 advanced to the fourth child should be equal, giving the first of these shares to the first child, the seeond share to the second child, thethird share to the third child, and the fourth share to the fourth child. The testator died in 1867. The widow died in 1872. During her lifetime a suit was instituted by one Davis against the executors of Morris for a large and unascertained debt, and the amount of this debt was not ascertained till-December 11, 1875, so thatit was impossible to make a division of the estate among the children until that time. The court held in that case, that the proper time to charge the children, to whom advancements had been made, with interest on their advancements was December 11, 1875, because, as they very properly construed the will ot Morris, bis children were to be made equal by bringing into hotchpot the principal of the sums, which he had severally advanced them, all set out in his will, after all his debts were paid and after the death of his widow. The time fixed for this equality by his will was not at the time of his deafh nor even at the time of the death of his widow, but only after all his debts were paid, and his estate was ready for distribution and division among his four children. The court, it seems to me, properly held in that case, that the testator had designedly postponed the time, when all his children should be made equal by bringing into hotchpot the principal of the advancements, which he had made to them severally. This decision, it seems to me, was perfectly consistent with the principles I have stated. For it can not be disputed, that the testator has a right by his will to select a different time from that fixed by the law, when all his children shall be made equal by bringing their several advancements into hotchpot; and his wishes as expressed in his will on this subject will be carried out. No one can read the opinion of the court'in that case and fail to see, that the sole ground, on which the court decided, that interest was not to be charged on the several advancements to the children for some eight years after the testator’s death, was that it appeared from the testator’s will, that’he desired this to be done. It is true, -Judge Staples in delivering the opinion of the court does after putting the decision of the court as to the time, from which interest was to be charged on the advancements to the children, expressly on the ground that the testator had clearly shown, that his children were not to be made equal at the time of his death by accounting for the principal of their several advancements, but only to be made equal in this manner many years after his death, that is, after the death of his widow and the payment of all his debts, and when his estate was ready for distribution actually among all his children, then adds language, which is calculated to mislead as to the true principles governing in such cases. He says, page 276: “And this is precisely what the law prescribes in cases of advancement in the absence of any contrary provision by the testator.” This we have seen is true only when this intention, that the children shall be made equal by bringing their advancements into hotchpot, when the estate is in point oí fact ready for division and distribution, appears from the will. If the father dies intestate, or if the contrary does not appear in his will, the law presumes that his will is that all shall be made equal at the time of his death by bringing their advancements into hotchpot. (See especially Knight & wife v. Oliver et als., 12 Grat. 33, syl. 4.)

My conclusion therefore is, that the circuit court did not err in its decree of April 8, 1879, in directing that “the daughters of TJlery Conrad (who had been advanced) should not be charged with rents and profits prior to the death of their father upon the real estate conveyed to them severally and to their children.” Nor did the court err in this decree in directing these daughters to be “charged with the value of these lands, when the deeds were made, with interest from the death of their father.” Nor did the commissioner in his last report confirmed by the decree of the court made June 15, 1883, err in charging all the children of TJlery Conrad with the value of personal as well as real estate advanced by their father at the time it was advanced and with interest on such value from Nov. 11,1867, the time when TJlery Conrad died.

It is complained of by appellant’s counsel as very unjust, that the sou Laban B. Conrad, who has had possession of all the father’s land since his death in 1867, is only charged the-rents and profits of these lands, which do not exceed three per cent, on their market value, while the daughters, to whom advancements had been made, are charged from the time of their father’s death six per cent on the. value of the lands deeded to them. I confess, that I am unable to see any injustice, which is done these daughters to whom advancements have been so made. On the contrary they seem to me to have great advantage over the son and daughter to whom no advancements were made. They are by the decrees of the circuit court and by law allowed to hold the tracts of land conveyed to them for more than twenty-two years from the date of the conveyances to their father’s death free from all charges for rents and profits. And after the expiration of this period of more than twenty-two years they are not charged" with the value of these tracts of land but only with their value in January, 1855, the time of the conveyances, probably not much if any more than one half the present value of these lands, the lands in many parts of this country doubling in value in thirty years. It is this rapid increase in the value of lands which makes these annual rental value in many cases only about three per cent, on their selling pt’ice. It is very likely that these daughters in being required to pay six per cent, per annum on the value oí these lands deeded to them, as this value was in 1855, are not really required to pay more than three per cent, per annum upon their present value or only about what the rents of these lands would now be; so that their brother in being charged with the rents of the lands which he has had possession of since his father’s death, is really being eharged with as much in proportion to the lands which ho holds, as are these sisters to' whom advancements have been made, the difierence between them being only that they have had the use of the lands, which they held for twenty-two years free of rent, ■while he will be compelled to pay rent on all the lands of his father, which he holds, for all the time he holds it. Certain it is he can only be charged with the rents and profits of these lands, which with the tacit consent of bis sisters his coparceners he holds; and equally certain it is that the law' allou'S them the advantage over him of not paying any rents on the lands, which they have held for tvrenty-two years, while their father lived.

It is insisted by the appellants’ counsel, that the twenty-four children of these daughters, who are still living, and to whom advancements have been made, ought all to be made defendants. I can not see that they have any interest "whatever in this suit except the interest, which every child may have in the success of its parents in a litigation. They have no more interest in this cause than have the children of their brotherLabanB. Conradortheir sister Mrs.Nyle, theplaintiff.

I have now considered all the objections urged by the appellants’ counsel to the decree and proceedings in the circuit court; and my conclusion is, that there is no error in these proceedings; that the decrees of April 8,1879, and of June 15, 1883, must be affirmed; and that the appellants must pay to the appellees their costs in this Court expended and $30.00 damages.

Ambtrmed.