#### Kean v. Welch & als.

February, 1845,

Richmond.

(Absent Stanabd,* J.)

Wills — Advancements — Value of—How Computed.†— Testator, in the commencement of his will, says— “Willing to make some arrangement of my affairs and equalise my estate among my children, I do, hereby, make this my last will and testament.” He then, after making a provision for his widow, which includes two slaves, proceeds, “The residue of my real estate to be sold upon a credit, one third in hand, and the other two thirds in two equal annual payments, secured by a deed of trust upon the land ; the balance of my slaves to be equally divided among my children, with those slaves which I have heretofore lent to my children, or their value; the remaining part of my personal estate to be sold and equally divided among my several children, charging my daughter *A. F.*for advancements with 450 dollars, my daughter *K. O.*with 600 dollars, and my son *8. W.*with 600 dollars, as the balance for the land sold him, for which he has a deed. ” The testator in his lifetime had given slaves to some of his children, and loaned slaves to others. Held. 1. The children must account for the slaves delivered to them, and their increase, as of their value at the time of the division of the estate ; or if any of the slaves have been sold, and the value at the time of the division *cannot be ascertained, then for their value at the time of the sale. 2. If any of the slaves delivered to the children have died, the loss is to be borne by the estate. Baldwin, J., dissenting.

Sylvester Welch the elder died in 1834, having first made his will, which was duly admitted to probate in the county court of Eauquier. In the commencement of his will, he says, “wishing to make some arrangement of my affairs, and to equalise my estate among my children, I do, hereby, make this my last will and testament,” &c. He then, after making a provision for his widow, which includes two slaves, proceeds, “the residue of my real estate to be sold upon a credit, one third in hand, and the other two thirds in two equal annual payments, secured by a deed of trust upon the land; the balance of my slaves to be equally divided among *my*children, with those slaves which I have heretofore 'lent to my children, or their value; the remaining part of my personal estate to be sold, and equally divided among my several children, charging my daughter Ann Eishback for advancements with 450 dollars, my daughter Kitty Combs with 600 dollars, and my son Sylvester Welch with 600 dollars, as a balance for the land I sold him, for which he has a deed. ’ ’

At the death of Sylvester Welch he left one son, Sylvester Welch, jun. who he appointed his executor, and six daughters, all of whom but one, either was then, or had been married. Of these, Ann was married to Eishback in 1814, when she received from her father a negro girl named Sookey, and in 1816, she received from him a negro boy named Jesse, both of whom continued in the possession of Eishback until his death in 1824, when they went into the hands of his representatives, and continued therein ever after. The evidence seems to be clear that as to Sookey, Sylvester Welch never set up any claim to her, but repeatedly admitted that he had given her to Mrs. Fish-back, and although he set up a claim to Jesse when he was about to be appraised *as a part of the estate of Fish back, in 1824, that claim was denied by Fishback’s representative, and he acquiesced from that time until his death. He also put slaves into the possession of his other children, who were married, by some of whom it appears to have been admitted that the slaves thus put into their possession, were only loaned to them.

In 1834, Sylvester Welch jun’r the executor instituted this suit in the county court of Fauquier, against the other legatees of his father, in which he stated the difficulty of ascertaining the principles upon which a division of the estate should be made among *172the legatees, and asked that his administration account might be settled, and a division of the estate be made. The legatees answered, concurring in the prayer for a division, but Mrs. Fish back insisted, that the slaves Sookey and Jesse had been given to her by her father, and that she, therefore, was not to account for the present value of them and their increase, but only for the value when given. The question whether the children, who had received slaves from their father, should account for their value at the time of receiving them, or for the present value of the slaves and their increase, or the proceeds of such as were sold by them, was in fact the only disputed question in the cause.

The court referred the executor’s accounts to a commissioner, to be settled, and also appointed commissioners to divide the slaves, and on the coming in of their reports, made a decree, by which it was adjudged, that the children should each be charged with the value of the slhves at the time they were received.

During the pendency of the cause in the county court, the appellant James Kean intermarried with Jemima, the only daughter of Sylvester Welch, who had not been married in his lifetime, and he and his wife, and Shank and his wife, who was another daughter, took an appeal from the decree of the county court to the circuit superior *court of law and chancery for the county of Fauquier, where the decree of the county court was affirmed, and then Kean and wife applied for and obtained an appeal to this court.

R. C. Stanard, for the appellants.

C. & G. N. Johnson, for the appellees-.

*

He had been counsel in the cause,

†

 Ad vancements — Valuation of. — See *foot-note*to Knight v. Oliver, 12 Gratt. 33.

Same—Same—Reasons for Rule.—“The reasons for valuing advancements as of the time they were received and not as of the time of the death of the intestate are several, first: Because from the time that the real or personal property is received as an advancement, it is the property of 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. Butler. 1 Wash. 225 ; *Kean v.*Welsh, *1 Gratt. 406;*Knight v. Yarborough, 4 Rand. 569.” Kyle v. Conrad, 25 W. Va. 781.

See monographic *note*on “Advancements'1 appended to Watkins v. Young, 31 Gratt. 84.

Cotenants—Liability for Sale of Common Property.— In Moorman v. Smoot, 28 Gratt. 85, itis said : “Without undertaking therefore now to decide whether in a case such as this the party settling is liable only for the value at the death of the life tenant, where that value appears, it is sufficient to say that in the absence of proof upon that point the court is bound to adopt the price for which the slaves were sold as the sum with which the appellant is to be charged in his account with his cotenants. *Kean v. Welch, 1 Gratt. 403;*Cross v. Cross, 4 Gratt. 257.”

ALLEN, J.,

delivered the opinion of the court.

The court is of opinion, that the testator, by his will, treated all the slaves theretofore placed by him in the possession of his children, or any of them, together with the increase of such slaves, as slaves belonging to him, and subject to disposition by him. That, by his will, all his slaves, (except the two given to his widow,) as well those in his own possession, as those he had placed in possession of his children, were to be equally divided among his children in like manner as the residue of his personal estate was directed to be divided. That *by*the expression in the will, “or their value,” he did not intend to treat the slaves as advancements, the value-of which was to be accounted for as at the time when they were advanced, but to give the loanees the privilege of retaining the slaves previously lent, upon their accounting for their value as at the time of the division. The court is further of opinion, that if any of said slaves so lent had died in possession of the loanee, the loss falls on the estate, and not on the loanee. And if, prior to such division, ansr of the slaves loaned or their increase have been sold by or passed out of the possession of the loanees, so that they cannot be produced for division in kind, such loanee should be charged with the value of such slaves and their increase as at the time of division, if it can be ascertained, if not the value at the time of the sale or when possession was parted with or lost.

The court is, therefore, of opinion, that the decree of the circuit superior court of law and chancery, affirming *the decree of the county court of Fauquier, is erroneous; therefore the same is reversed with costs in favour of the appellant : and this court, proceeding to make such decree as said court ought to have made, is of opinion, that the county court erred in decreeing that the slaves received by the parties from the testator in his lifetime, ought to be valued at the time when they respectively came to their possession. Therefore, the decree of the county court is reversed with costs to the appellants in the prosecution of ’ their appeal in said circuit court expended; and the cause is remanded to be finally proceeded in according to the principles of this opinion and decree.

BAEDWIN, J.,

dissented from the opinion of the court.___