#### *Banyan Payne et ux. et al.*v. *J. M. Harris et al.*

Columbia,

May, 1849.

Under the Act of 1791 great grand children are, *per sterpes,*entitled to take their distributive shares.

Leasehold estates go to the executor or administrator; and are distributable under the Act of 1791.

The administrators having *bona, fide*divided the estate according to his advice, and accounted before the Ordinary, *held,*that the statute of limitations obtained currency against the parties from the date of the division.

The distributees of an estate which had been settled by the administrators, under the direction of the Ordinary, and tvho are subsequently let into a share thereof, are not entitled to interest upon their distributive shares previous to the filing of their bill.

*Before*Johnston, Ch. *at York, June,*1848.

Johnston, Ch. — This was a bill to reform a division which had been made of the estate of Robert Harris, the intestate of the defendants McKee and James M. Harris.

The intestate died on the 27th September, 1841, leaving several children, &c. surviving him.

One of his daughters, Nancy, died in his lifetime, leaving two daughters, who also died in his lifetime, leaving each of them two children, one of which children became the wife of Banyan Payne during the life of the intestate. These parties live in Tennessee.

On the 13th of February, 1844, the administrators of the *40intestate came to an account, before the Ordinary of York ^ district, touching the estate ; and a division was made there'’of among the children and grand children, excluding the issue of Nancy, who were great grand children of the intestate.

1 Brev. 422, sec. 3.

1 Brev. 425, sec. 4.

1 Brev. 424, sec. 15 and 16.

In this division were included the proceeds of certain leasehold estates, lying within the Indian boundary.

In making the division, the parties to it accounted for their advancements; and it appears that Josiah Harris, one of them, was indebted beyond his distributive share, and was, at the intestate’s death, and still continues, insolvent.

The bill was filed 17th of May, 1848 ; it is admitted that Mrs. Payne was at that time 26 years of age, and her husband about 40. The other plaintiffs are minors.

The plaintiffs who are the grand children of Nancy, and great grand children of the intestate, have ever been, and are, as has been stated, citizens resident in Tennessee. Their bill seeks to reform the division of 1844, and to be let into a share of the estate ; and states that they have been kept in ignorance of the division until lately.

The answer denies all concealment; and there is no doubt of the *bona jides*of the transaction.

Several questions have been made :

1st. Can great grand children take under the circumstances of this case ? And how ?

2nd. If so, can they claim a share of the leasehold estate ?

3rd. Are not Payne and wife concluded by the division of 1844?

4th. If the settlement is to be opened, are the plaintiffs entitled to interest before the filing of the bill ?

5th. How are costs to be decreed?

1st. I cannot hesitate upon the first question.

The first canon of the Statute of 1791, declares that the children of the intestate shall take among them equally.

Then the second canon is in these words: “ The lineal descendants of the intestate shall represent their respective parents, and be entitled to receive and divide, equally among them, the shares to which their parents would, respectively, have been entitled had they survived the ancestor.” The next four sections are employed in declaring who shall take where “ the intestate shall leave no lineal descendant,” implying that wherever there is a lineal descendant he shall take, and the estate shall not go over.

Again, in laying down the law of advancements, the Statute speaks of the right of a child, “ or the issue of a child,” to take a distributive share alternatively; and “ issue” is a word that extends to the remotest posterity.

If one of the daughters of Nancy had survived the intes*41tate, the other being dead and leaving children, a question might have been made whether the surviving daughter could take in exclusion of her sister’s children, or whether the surviving daughter and the children of the deceased daughter would not take “ equally among them, *per*capita, as all coming within the description of lineal descendants of the intestate.” Even in that case I think there is enough in the context and spirit of the Statute to show that the proper rule of distribution would have been *pm' stirpes,*and not *per capita.*But in the present case, where the daughters of Nancy left an equal number of children, all standing upon equal footing, and as “ lineal descendants,” entitled to “ represent their respective parents,” and to “ receive and divide equally among them the shares to which their parents would, respectively, have been entitled had they survived the ancestor,” there does not appear to be any room to doubt. They are entitled to come in for an equal share of the child’s (Nancy’s) part.

2 M’C. C.90.

It is alleged, however, in the answer, that advancements have been made to this family. If so, this matter must be looked to. By the Statute already referred to, it is enacted that “nothing therein contained shall be construed to give to any child or its issue a share of the intestate’s estate, where such child or issue shall have been advanced by the intestate in his lifetime, by portion or portions equal to the share which shall be allowed to the other children.” But where the advancement to “ any child or the issue of any child,” estimated at the death of the intestate, as explained in *McCaw*v. *Blewit,*falls short of a child’s share, “then ass much of the intestate’s estate shall be distributed to such child or issue as shall” (correspond with the other children’s shares,) and “'make the estate of all the children to be equal.”

I take it to be a sound exposition of these provisions, that in the division of an intestate’s estate, it must be thrown into shares corresponding in number to the number of children who survived him, and of pre-deceased children who have left issue living at his death. The issue of a pre-deceased child to come in for a child’s share, which is to be sub-divided among them, ratably *per stirpes.*But this share, in the first instance, and before sub-division, is to be regarded as an unit, (or child’s share,) and to be chargeable with all advancements made either to the original stock child, or any of the child’s descendants, standing at the time of the advancement in the character of heir apparent, and who, if the intestate had died at the time of the gift, would have taken the share or a part thereof. An advancement to Nancy, beyond a child’s part, would exclude her issue entirely. A similar advancement to her daughters, or to either of them, if they survived *42her, and stood at the time of the advancement as heirs apy parent, would have a similar effect. If neither Nancy nor / her daughters were advanced, but a full child’s share was advanced to their issue, (the present plaintiffs,) or either of them, after they became heirs apparent, the same result would follow. If the aggregate of all the advancements to Nancy, her daughters, and their children, made successively when the respective donees stood in a condition to inherit, provided the donor had then died — if the aggregate of all these exceed a child’s share, the plaintiffs are not entitled to any part of the intestate’s estate. If the aggregate falls short, they are entitled to so much as, with the advancements, will make up a child’s portion of the estate. In the sub-division of whatever may be coming to this family, a similar principle of equality should be observed, for the parties must take *per stirpes*or representation. If one of the daughters received, by advancement, more than one half of a child’s part, she would not have been compelled to relinquish it, nor will her children. But the residue must be distributed to her sister’s children; and so, if the advancement was less than a half, the residue must be so distributed as to produce equality.— The same rule must be observed as to advancements, if any, made to the plaintiffs.

Bail. Eq. 195.

Such, it appears to me, must be the rule of distribution, if the plaintiffs are entitled to maintain this bill.

There is another point which must be attended to in the same event. In re-casting the accounts the administrators must not be charged with any part of Josiah Harris’s debts to the intestate, except so far as, by the account, the same may be set off against his distributive share of the estate.— The administrators must not be sufferers in regard to this debt, which was not lost through their neglect.

2. The second question might have been more difficult, but for the uniform practical construction of the Act of 1791.

Leasehold estates go to the executor, and all personal estate within the meaning of the Act; which intended to in- ' elude, under that term, whatever was to be administered by the personal representative of the deceased.

3. Under the third question it was contended that the plaintiffs, Payne and wife, are barred by the statute of limitations ; which is admitted to be pleaded.

The division was made, in the records of the Ordinary’s office, the 13th of February, 1844, and this bill was filed the 17th of May, 1848.

I* was ruled in *Moore*v. *Porcher,*that if an executor or other express trustee does an act purporting to be a full execution of his trust, the statute will be applied from that time, as in cases of implied trusts.

I take it, that an act done in a public office, open for the *43Information of parties interested, must be taken notice of by them ; and that the statute obtained currency against the parties mentioned, from the date of the division.

3 M,c R 331

But Mrs. Payne, whose right is in question, was a *femme covert,*and resident *beyond the limits of the State:*and by the Act of 1712, (which, so far as has been intimated, has not been altered in this respect,) it is provided that, “ if any person or persons entitled to any action, <fcc.” “ actions of accounts, debts,” &c. “ at the time of any such cause of action given or accrued, shall be *beyond seas ox femme*covert, &c. shall be at liberty to bring the action,” at any time within five years after such cause of action given or accrued, &c.

The bill appears to have been filed within the time thus limited, and the objection must be overruled.

4th. Upon the fourth question I am of opinion that, under the circumstances, the plaintiffs are not entitled to interest, between the division and filing of. the bill.

The result is, that the plaintiffs are entitled to have the division reformed to the extent and upon the principles indicated in the foregoing observations, and that the parties to that division, who are all parties to this suit, must account accordingly in respect to what they severally received in the division.

It is ordered that an account be taken and reported accordingly.

Each party to pay costs, according to his interest in the estate; meaning thereby, not what may actually result to each party, but the interest claimed by him or her.

The complainants appealed from this decree, and moved the Court of Appeals to modify the same, on the following ground:

Because his Honor held that the defendants, McKee and Harris, the administrators of Robert Harris, were pot accountable for interest on the distributive shares of the estate of said Robert Harris, due to the complainants, until the filing of their bill: whereas it is respectfully submitted there are no circumstances, in this case, to' excuse the administrators from the payment of the usual interest, and that at all events they shohld account to the two minors, complainants, for interest on their share from the time the estate became distributable.

*Williams,*Complainants’s Solicitor.

The defendants also appealed, on the following grounds ■:

1st. Because his Honor erred in deciding that the great grand children were entitled to take.

" 2nd. Because his Honor erred in deciding that Banyan Payne and wife were not barred by the statute of limitations.

*441 Swanst. 199

• 3rd. Because, leasehold estates are not distributable under ; the Act of 1791.

Witherspoon, Defendants’s Solicitor.

*Curia, per*

Dunkin, Ch.

This Court concurs generally in the views presented by the Chancellor. It is deemed necessary only to add a word in explanation of the reason for restricting the claim of interest.

The intestate died in 1841. In February, 1844, a settlement was made with the distributees, under the advice and direction of the Ordinary. “ There is no doubt.” says the Chancellor, “ of the *bona Jides*of the transaction.” If the complainants had been *sui juris,*and had been parties to this settlement, they would probably have been barred from impeaching it after an acquiescence of more than four years. But they were not bound, and are not precluded by the erroneous view taken by the Ordinary. It does not follow, however, that they are entitled to recover interest. After distribution of an estate, an unsatisfied creditor may recover his demand from the distributees or legatees who have received their proportions. But in such case the refunding party is never charged with interest. Such is declared to be “ the rule of the Court” by Lord Eldon in *Gittins*v. *Steele.*

In this case the administrators are also among the distri-butees. They are made responsible for interest, until the settlement in 1844. After that time they may very well have treated the shares allotted to them as their own. No demand was made until 17th May, 1848, and we think that, in any view, they fall within the equity of the rule declared in *Gittins*v. *Steele.*

The decree of the Circuit Court is affirmed, and the appeal is dismissed.

The whole court concurred.

*Decree affirmed.*