#### *Thomas Hamer et al.*v. *Susannah Hamer et al.*

Columbia,

May, 1850.

If a child has been advanced, he is not compelled to bring1 such advancement into *hotchpot,*unless he claims some further share of the estate of the intestate. And *it*makes no difference whether he has been advanced in personal or real estate. The principle applies to the partition of the estate in the aggregate.

*Before*Dargan, Ch. *at Cheraw, Feb'y*Sittings, 1847.

The following Circuit decree sufficiently refers to the facts of the case:

The complainants and defendants are the heirs at law of John Hamer, late oí Marlborough district, who died intestate, and the bill was filed for the partition of his real estate. The bill describes in a particular manner the lands, of which it is alleged the intestate was seized in fee at the time of his death, and charges that some of the defendants, to-wit: Wm. Hamer, Alfred Hamer, Eli Thomas, and the heirs at law of Daniel Hamer and Alfred Hamer, set up adverse *titles to*portions of land which the complainants describe as part of the real estate of the intestate. The bill charges that those defendants had no title, but that they were put in possession by the intestate in his lifetime ; that the possession on their part was not adverse to that of the intestate; that it was undefined in extent; that it was expressly by and with the consent of the intestate; that during his life they never claimed any right dr interest in the land, and that they were mere tenants at will. William and Alfred Hamer, and the heirs at law of Daniel Hamer, in answer to the bill, deny that a portion of the lands described in the bill was the property of John *125Hamer (the intestate) at the time of his death, or that it is subject to partition, and set up adverse title in themselves. ( They particularly describe the several portions claimed by them respectively, and the manner by which the title was acquired, which they allege was by parol gift from the intestate, and inducted by him into the possession as of their own property. This defective title they claim to have been ripened and perfected by the statutes of limitations.

The case was heard at February Term, 1848, and the presiding Chancellor, on the evidence before him, decreed that the lands claimed by William and Alfred Hamer and the heirs of Daniel Hamer, and described in their answer, should be exempted from partition as being no part of the estate of John Hamer, dec’d.; adjudging that the title of those defend-dants to the said lands was paramount, he ordered a writ of partition to “issue to divide the lands, in the bill mentioned, amongst the distributees of the intestate, John Hamer, in the manner and according to the principles established by law, respecting the distribution of intestate estates,” subject to the claims set up by the said defendants to portions of the land described in the bill, which claims were sustained by the decree.

On this decree a writ of partition was issued, and the writ directed the commissioners to make partition of the lands of Johu Hamer, described in the bill, except those portions claimed by William and Alfred Hamer, and the heirs at law of Daniel Hamer. The writ also directed the commissioners to assign an equal share, to wit: one fourteenth to William Hamer, one fourteenth to Alfred Hamer, and one fourteenth to the heirs at law of Daniel Hamer, and so of the restl The writ further directed them “ to have reference in said distribution to the relative value of the said lands, and to the tracts of land already given to the said Alfred, Daniel and William Hamer by the said John Hamer in his lifetime, so that you (the commissioners) make the distribution of the lands of the said John Hamer amongst his heirs at law aforesaid fair and equal, according to the principles established by law,” &c.

The commissioners, at this term of the Court, have made return of their proceedings under the writ of partition. From an examination of this return, it appears that the commissioners have considered the lands given to William, Alfred and Daniel Hamer, as advancements, and in estimating their value, and that of the other lands of the intestate, it appears that the said William, Alfred and Daniel Hamer were respectively advanced beyond the amount of their several distributive shares. Each of them has been advanced, according to this valuation, to an amount about double their several shares; under those circumstances, the commissioners have already considered the lands thus given as advancements, but *126as having been brought into hotchpot, or to be accounted for at their value by the advanced heirs ; they have accordingly '’made a valuation and partition of the estate of the intestate, predicated upon the principle that those advanced heirs were to account to the other heirs for the lands given to them by way of advancements. To this return of the commissioners, the heirs who have been advanced have filed various exceptions, which are herewith filed, and to which reference will be had as often as may be necessary. I will say, in the beginning, that whatever rights the advanced heirs may possess, those rights are not to be prejudiced by reason of any instructions contained in the writ of partition. That was based upon the decree of the Court, and was unauthorized and void, farther than the decree would warrant. And the exceptants complain, by affidavit, that they had no notice of the application for the writ, and therefore no opportunity of assisting in the selection of commissioners, three of-whom were obnoxious to them : And farther, that they had no notice of the proceedings under the writ, were not present, and had no opportunity by notice of being present at the valuation of their lands, and that the said valuation was wholly *ex parte.*As they have been over advanced they except to their lands being brought into the valuation and partition, and claim the privilege of renouncing all claim in the distribution of their father’s estate. On the other side it is contended, that not having heretofore renounced, they have elected to take a distributive share, which they cannotdo without accounting for their advancements, and that they cannot now recede. This I think is substantially the issue between the parties.

That the lands acquired by the exceptants from the intestate in his life are advancements, there can be no doubt; there can be no principle of law more clear than that a child advanced, can claim no distributive share, without bringing in and accounting for the value of his advancements. And it is equally clear that one advanced to the value of, or above the value of, his share, is not obliged to account for such advancements, if he chooses to rest contented with that, and claims no farther distribution. This is all too plain and familiar to admit of discussion. The exceptants now renounce their distributive share; and the only question that could possibly be made, is whether they have heretofore elected, and so definitively as to be concluded by such elections. The complainants contend that they have elected to take their distributive share and to account for their advancements, because they have not heretofore formally renounced. This proposition, when analysed, amounts simply to this, that they *have*elected because they have not elected.

I think I am sustained by the authorities in laying down a general principle applicable to all cases of election, and per*127vading the whole law on the subject, which is this : where a person is bound to elect to take benefits under two or more instruments, or derived from two or more sources of title, he is entitled to make bis election with deliberation, and with a full knowledge of his rights and interests. And it would not be difficult to produce cases where parties have been released by this Court from premature election, made under circumstances where the proper information was wánting for a judicious exercise of the discretion. The right to this deliberate exercise of the judgment in the matter of election, is particularly applicable to cases occurring under the clause of an Act of 1791, under which this question arises; the Act that “ in case any child, or the issue of any child, who shall have been so advanced, shall not have received a portion equal to the share which shall be due to other children, (the value of which portion being estimated at the death of the ancestor, &c.) then so much of the estate of the intestate shall be distributed to such child or issue as shall make the estate of all the children equal.” How is it to be known whether the portion of the advanced child is under or over his distributive share, or the shares which the other children are entitled to take, until an appraisement and valuation are made? In some cases possibly it might be known without such proceedings, that a child was advanced above his share. But I apprehend, in a majority of instances, the opposite would be the true state of the case. The excess of the advancements over the distributive shares in the case before me is not so great, but that some uncertainty might have rested upon the result of a valuation ; for it is always uncertain what valuation the commissioners may make, and different persons might adopt a different estimate. At all events, I think that one advanced child has the right to await the settlement of the estate and *its*valuation, and the ascertaining of the nett amount for distribution after the payment of debts and charges, for the purpose of knowing whether he is entitled to receive something farther under the provisions of the Act before he can be required to make a definite election. The application of any other principle would be unjust; for it would compel the advanced child at once to renounce his indisputable rights under the Act, or to make an unadvised and premature election, at the peril of forfeiting property to which he had already acquired an indefeasible title.

5 Stat. Large

On looking into the case before me, as it is presented in the record, I see no ground whatever for supposition that the exceptants have elected to take a distributive share of intestate’s real estate. I have said I see no reason for such a supposition in the case *as it has been presented.*It was said by the solicitor for the complainants, arguendo, that these excep-tants have, in the distribution of the personal estate, accepted *128and received their several distributive shares; if this fac-appeared upon the record, or were presented in the formo! testimony, it might have the effect of imparting to the question a different aspect. I have already said that a child advanced can take no part in the distribution of an intestate’s estate without accounting for the value of his advancements, to be estimated in the particular manner prescribed in the Act. And it makes no difference whether he has been advanced in personal or real estate. - The principle applies to the partition of the estate in the aggregate. And if it had been . made to appear that these exceptants had received a share in the distribution of the personal estate on its partition by the Ordinary, it might be that such participation in the division of the personal estate would have been considered an election by them, to come in as distributees, and to account for their advancements ; or it might possibly have been held that they were entitled to be released from the consequences of a premature election, on their refunding the amount that they had received. One thing is very certain, if the fact exists, and a proper case had been made and presented, they would have been compelled either to account for their advancements, or to disgorge what they had received. But this fact is *coram non judice.*

it is not upon the record ; it has not been spoken through the mouths of witnesses, nor presented in any of the forms of evidence. It is indeed asserted in the bill, that the administrator of the intestate has accounted before the Ordinary for the personal estate, and that a distribution thereof has been made before or by that officer, but it is not asserted expressly or by implication, that these exceptants received any portion. I cannot travel out of the record, or the case made by the' parties themselves ; nor can I predicate any order for leave to amend, after the trial and arguments upon suggestions of counsel as to facts that have not been admitted or proved.

Here I might pause, for it is sufficiently clear that the return must be set aside. But I will add a few words by way of commentary upon the mode of proceedings on questions of advancements; such questions should be made distinctly in the pleadings, which has not been done in this case. The bill denies that the lands claimed by the exceptants were advancements, and contends that they constituted portions of the intestate’s estate ; but contains no prayer that in case they should not be considered a part of the estate, they should beaccounted for as advancements. What constitutes advancements, is oftentimes a difficult question of law And it is a question proper for the Court, and not for the commissioners, whose office is simply to execute the judgment of the Court. Up to the present trial there has been no adjudication by the Court on the question of advancements. Yet the commis*129sioners have undertaken to adjudge that question ; and not only that, but another oft times difficult question of law and ( of fact, viz : that the parties have elected.

The question of advancements being made in the pleadings, should have been referred to the commissioner, and there should have been a report from him on the subject, with exceptions thereto on the part of those who were dissatisfied. The Court of Law possesses concurrent jurisdiction with the Court of Equity in the partition of an intestate’s lands. And the doctrine of advancements prevails equally in partitions made in that Court as in this. And where a resort is had to the Court of Law for a partition, and in a case where advancements are to be estimated, it may be necessary that this should be done through the intervention of the commissioners appointed to make the partition. It may be that the organization of that Court would admit of no other instrumentality than that which necessarily prevails in that Court in giving, effect to the act of distributions. I will not say that the same mode of proceeding in this Court would *be illegal;*but I will say that a reference to the Master, if not a more legal, is certainly a more proper and convenient mode of adjusting these questions of advancements. The parties to these questions have the right to raise issues of law and of fact, to have counsel and to compel the attendance of witnesses, and to be heard in argument and by evidence on all controverted points. The commissioners, acting under a writ of partition, áre but illy constituted and qualified to adjudge such matters. In fact they are limited to an estimate founded on their personal inspection and knowledge, and not upon information derived from witnesses examined on oath before them. They are to form their judgment upon their personal inspection, while the mode of valuation prescribed by the statute as to advancements renders it necessary that they should have reference to the státe of the property at periods long anterior, and the mutations which it has undergone would render it extremely difficult in many cases for them to make such an estimate as the law requires. It is obvious for many reasons that it is most regular in this Court for such matters to be referred to the Master, and on the coming in of his report on advancements and its confirmation, the writ of paitition should issue. I should in this case, *now,*refer it to the commissioner, to report upon the value of the advancements made by the intestate to the exceptants; but in the present stage of the proceedings, this course would be unnecessary, as I consider them *now*to have renounced all participation in the distribution of John Hamer’s estate.

It is ordered and decreed that the return of the commissioners in this case be set aside, and that a new writ do issue, to be directed to the same commissioners, and that they divide the *130real estate of Thomas Hamer in equal shares among all the heirs at law of the said Thomas Plamer, with the exception T^rUIiam. and Alfred Hamer, and the heirs at 'law of Daniel Hamer. And it is further ordered and decreed, that those last named heirs be excluded.

The complainants appealed, on the following grounds :

1. Because it is sufficiently stated in the bill, and not denied in the answer of Alfred, William, and the heirs of Daniel Hamer, that they had already received their distributive shares of the personal estate of John H. Hamer, in a settlement before the Ordinary of Marlborough district, previously to the filing of this bill, for the partition of the real estate; which fact amounts in law to an election on their part, to take distributive shares of the real estate of said John H. Hamer as advanced heirs, by bringing those advancements into hotch-pot; and his Honor erred in ruling that they had not elected, but might still withdraw from the partition of the real estate.

*2.*Because it was not known, until the decision of his Honor, Chancellor Caldwell,'February Term, 1848, whether the lands claimed by Alfred, William and heirs of Daniel Hamer, in their answers, were not in fact still parts of the real estate of John H. Hamer, as charged in the bill; and their co-distributees could not, therefore, charge as advancements what they had previously insisted was part of intestate’s estate. The co-distributees hence insist, that if the pleadings did not make out a case of election, on the part of these dis-tributees, with the utmost clearness, the uncertainty about the legal title of these distributees to the lands severally claimed by them, and not dissipated until the decision of Chancellor Caldwell, was enough, under the circumstances, to entitle the plaintiffs and their co-distributees to amend, and his Honor, Chancellor Dargan, should have allowed an amendment, so that the advancements to these three heirs, in land, and their participation in the personal estate, might be particularly.set forth.

3. Because the return of the commissioners in partition was in conformity with the decree of his Honor, Chancellor Caldwell, and with the manifest law and justice of the case, and should not have been set aside.

4. Because the decree of his Honor, Chancellor Dargan, although it set aside the partition made, does not direct in what other manner the real estate of John H. Hamer should be divided.

5. Because from the charges of the bill, and the answers of Alfred Hamer, William Hamer and the heirs of Daniel Hamer thereto, the said parties were precluded from withdrawing from the partition, as advanced heirs.

*1316. Because the decree was in other respects erroneous and should be reversed. ,

*Dudley*& *Johnson,*for the motion. , contra.

*Curia, per*

Dunkin, Ch.

These proceedings are between the heirs at law of John H. Hamer, late of Marlborough district, deceased. The object was the partition of various tracts of land, described in the pleadings as the real estate of the intestate.

The bill recites the death of the intestate in 1840; that Robert C. Hamer, one of the heirs, had administered; that his accounts had been audited before the Ordinary, and the distribution of the personalty in his hands formally decreed by that Court, and that nothing remained for distribution but the real estate, of which the description and boundaries are set forth. The answers of the defendants admit the general allegations of the bill as to the death, administration, &c. and that the intestate left a considerable real and personal estate, distributable among his heirs at law; that the said personal estate has been administered by Robert C. Hamer, one of the complainants, to the extent in the said bill mentioned, and that nothing now remains of the estate of the said John H. Hamer to be distributed, except the lands of which the said intestate died seized and possessed, in Marlborough district.

Several of the defendants insist, however, by their answers, that some of the tracts of the land described in the pleadings were not part of the estate at his death, inasmuch as they had been long since given to the defendants, and had been held by them under the gift for a much longer period than was necessary to confirm their title under the statute of limitations.

After a hearing before the late Chancellor Caldwell, at February Sittings, 1848, an order was entered that “ a writ of partition issue to.divide the lands in the bill mentioned among the distributees of the intestate, John H. Hamer, in the manner, and according to the principles established by law, respecting the distribution of intestates’s estates,” excepting therefrom the several tracts claimed by the several defendants, “ to which it appeared to the Court that the said defendants had acquired a valid, legal title in the lifetime of the intestate, by parol gifts from him to them, accompanied by an adverse possession of more than ten years.”

Under this order a writ was issued, and the commissioners have made their return, in which, among other things, they recommend that large sums of money be paid by the defendants to the complainants, on account of the lands thus given to them by their father. Various exceptions were filed by *132the defendants to this return; but the principal objection is, that the commissioners have forced the defendants to bring their lands into distribution contrary to the decretal order, whereas they were entitled to full information before they could be required to make an election, and that no case was made for that purpose. On hearing the exceptions, *the*presiding Chancellor set aside the return, and ordered a new writ to issue to divide the real estate among all the heirs of the intestate, with the exception of those who had been advanced, and directed that these should be excluded. From this decree the complainants appeal, on various grounds set forth in the brief. The substance is, because the return conforms to the decree of Chancellor Caldwell — or that, if it does not, the return should be set aside merely, but that *the*last decree materially varies from the original decree.

The decretal order of Chancellor Caldwell directs that the lands mentioned in the bill, except those which had been given to the defendants, should “ be divided among the distributees of the intestate, John H. Hamer, in the manner and according to the principles established by law respecting the distribution of intestates’s estates.” The Act of 1791 prescribes, “that nothing herein contained shall be considered to give to any child or issue, &c. of the intestate a share of his or her ancestor’s estate, where such child or issue shall have been advanced by the intestate in his lifetime, by portions or portion, equal to the share which shall be allotted to the other children ; but in case any child, or the issue of any child, who shall have been so advanced, shall not have received a portion equal to the share which shall be due to the other children, (the value of which being estimated at the death of the ancestor, &c.) then so much of the estate of the intestate shall be distributed to such child or issue, as shall make the estate of all the children equal.” If, then, a child has been advanced, he is not compelled to bring such advancement into hotchpot, unless he claims some further share of the estate of the intestate. It seems hardly necessary, however, to add, that it makes no difference whether he has been advanced in personal or real estate. “The principle applies to the partition of the estate in the aggregate.” The difficulty in this case arises from the fact that the parties have already made distribution of the personalty among themselves, without the aid of this Court. The decretal order of Chancellor Caldwell cannot be carried into effect, that is, the division cannot be made among the distributees of the intestate, in the manner and according to the principles established by the Act of 1791, as the commissioners have not the means of ascertaining whether the child advanced has or has not received his equal share of the estate of the intestate. A preliminary inquiry is, therefore, necessary. A previous distribution of *133the personalty is stated in the bill to have been made and admitted by the answers, but none of the particulars are forth. It is proper, therefore, that the commissioner should receive testimony and report upon this subject, as well as in relation to any rents which may have been received by the ad-miuistrator as suggested in the return, and that he have leave to report, any special matter, so that the Circuit Court may give such further directions as will carry into effect the decree of Chancellor Caldwell. A reference for this purpose is ordered, and the decree of the Circuit Court modified accordingly.

Johnston, Ch. concurred.

*Decree modified.*