[Present, Chancellors Rutledge and Marshall.]

#### John P. Richardson, Executor of James Sinkler, deceased, *vs.*Margaret Sinkler, Jas. B. Richardson, and others, Legatees of James Sinkler, deceased.

MAY, 1802.

Testator directs *his*funded stock to be kept till his youngest child should come of age, or marry; and then to be divided among his children that might be living, and his wife, if then his widow. A child born after making the will, is entitled to a share of the stock.

Personal property bequeathed to a particular legatee on conditions, does not pass under the residuary clause if the legacy be refused; but is distributable as undisposed property.

A son to whom some estate is loaned by his father to work and improve, and to receive the profits, is not accountable for the profits to entitle himself to a distributive share of the estate undisposed by his father’s will

A child to whom a marriage portion is given, is not under the circumstances obliged to bring it into account to entitleherselfto ashare of the distributive estate not passed by her father’s will.

In cases of partial intestacy, the doctrine of hotch pot does not apply.

THE bill was filed to obtain tbe decision of the court on many questions which arose among the heirs and legatees *128of the late James Sinkler, respecting their rights in his es-* fate, and for the guidance and protection of the executors.,

The kill charges that, Charles Cantey being possessed of a large estate, died intestate, on the 10th Oct. 1780.— among other children, his daughter, Mrs. Sarah Sinkler, (then the wife of James Sinkler,) and a grand daughter, Ann Cantey" Sinkler, the daughter of James Sinkler, by his wife then deceased, who was also a daughter of said Charles Cantey.

That by the statute of distributions, the personal estate was divisible into eight equal shares, one of which was to go to the said daughter of James Sinkler, in right of her mother then deceased. That in 1783, there was a divi» sionof the personal estate, when. James Sinkler drew one share in right of his wife, and one share for his said daughter. That James Sinkler possessed himself of the share of his daughter during his life time, and worked the negroes as his own, and took the rents and profits to himself. That James B. Richardson married the said daughter Ann C. Sinkler, on the 10th May, 1791. That James Sinkler during his life, never settled with J. B. Richardson, or paid any part of the property received for his wife from Charles Cantey’s estate; but he gave him on his marriage* thirty-two negro slaves as a marriage portion with his said daughter.

That in February, 1798, James Sinkler made, a writing, purporting to be a last will and testament, in which are the following- dispositions, among others; that his estate should be kept together till his debts were paid. Then he gives his wife Margaret Sinkler fifty-one negro slaves by name. He also gave to her, “ in lieu of dower, &c. all his household furniture, &c. poultry, carriage and chair, and choice of five geldings, his southernmost tenement and lot in Meeting-street, the use of the plantation whereon he lived, and 250 acres to plant; together with the retreat-houses; while she remained his widow,; & one third of his stock of cattle, sheep, &c. He gives to his son-in-law Jas. B. Richardson, his northernmost tenement in Meeting-*129street, together with thirteen negroes by name, and adds, *“*these, with thirty-two negroes, given my daughter as her marriage portion, makes him fully equal to my other children, and is in lieu of any claim to any part of the estate of Charles Cantey.” He ord.rshis funded stock to remain till his youngest child should come of age or marry, then to be divided among his children that may then be living, and his wife, if a widow.

The interest of the funded stock in the interim to the sole use and education of his son William, and daughter Margaret Anna. The residue of his personal estate he gives to his children at twenty-one or marriage. That he appointed complainant one of the executors : that the instrument being subscribed by two witnesses only, has been proved as a testament of personal property in preference to a new will, began but not finished by the testator shortly before his death. That the real estate cannot pass, and of course that part of the provision for J. B. Richardson, in lieu of the claims for Charles Cantey’s estate, is defeated.

That after making the testament, and a few months pri- or to his death, the testator had a son born named James. That the testator died on the 20th Nov. 1800, leaving his widow and daughter Ann Cantey Richardson, (wife of defendant *J. B.*Richardson,) Charles, William, Margaret Anna, and the young child James, all still living. That the testator acquired some personal estate subsequent to the making of the will, which by the act abolishing primogeniture, cannot pass, but must be distributed.

That the real estate consisted of divers plantations, and town property, all of which has been divided by a writ of partition between all the parties, including the young child James, except the-two tenements in Charleston, which the Commissioners have recommended to be sold.

That some or all of the provisions made for the wife are in lieu of *dower;*but as the real devises cannotpass, complainant is unadvised whether she will accept or not, or resort to her dividend under the primogeniture law, or betake herself to dower.

*130That the debts of the estate are not considerable ; that some of the children are minors, viz: William, Margaret> Nnna and James : that complainant is desirous for a division of the estate, and that the rights and interests of the parties should be preserved.

But that various questions have arisen, which complainant is incompetent to decide. Some are made on behalf of James Sinkler, the youngest child, who is totally unprovided for in the testament. He claims a share of the funded stock under the words of the will, when it shall be divided ; also a share of the personal property acquired after making the will, whether slaves purchased or born, or increased by crops, monies, interest money, funded stock, and dividends on interest thereof; also that some provision be made for him out of the lands recommended to be sold j and that in consideration of his condition, no part of the intestate property real or personal, should be applied to the payment of debts: but that the same should be paid In the first instance out of the residuary personal estate given to William and Margaret Anna j whereas the other defendants insist that the funded stock is to be divided between them only, by the terms of the testament.

Again, William and Margaret Anna contend that the testator is not to be considered as intestate, as to any monies he may have acquired or received after making the testament, nor of interest money, nor of money changed into stock, or otherwise put out and called in again, nor of clops, and that a contrary construction would involve great perplexity, and be impracticable.

Again, the said defendants, other than the said James B. Richardson, insist that no provision can be made for him out of the intestate’s real estate, which has been recommended to be *sold;*but that the same, or the monies which may arise out of the sales, are distributable among all the defendants *;*and contend also that the unbequeath-ed personal property, particularly the crops, as well by the laws of the land as by the intention of the testator, are the most suitable fund for the debts.

*131That the said James B. Richardson claims the thirty-two negroes given to his wife as a marriage portion abso-luteiy, and not as being in lieu'of Charles Cantey’s estate, and contends that only the house and lot in Charleston and the thirteen, negroes are in lieu thereof: that if this court can by any decree secure the latter to them, they are willing to accept it in lieu thereof; but that otherwise they claim the *share*of Mrs. Ann C. Richardson of her grandfather’s estate, and an account of the profits, and that the slaves be specifically delivered over to them. They also contend that the slaves are not to be brought into hotch pot with the real and personal estate, whereof James Sinkler died intestate : whereas Margaret Sinkler, and the minors William, Margaret Anna and James, insist that the thirty-two negroes were given in lieu of the claims of Mrs. Richardson for her grandfather’s estate : that it was well known that the circumstances of the said James Sinkler could not permit him to give so large a marriage portion (without injustice to the rest of his family) if he was yet to be answerable for Charles Cantey’s estate, &c. And also, if this were not so, that the claim of J. B. Richardson- and wife, for their share of said estate, is barred by law. — • That the said Margaret Sinkler contends that some of the *negroes of*Charles Cantey’s estate now sought to be specifically delivered to J. B. Richardson, have been specifically bequeathed to her by the *testator;*and if they are taken away, that she ought to be compensated out of some other parts of the estate j whereas the other legatees contend that the said bequest being specific, must in such case, be lost to her *altogether;*and lastly, all the defendants, (other than J. B. Richardson,) contend that J. B. Richardson is entitled to no share of the intestates real or personal estate, unless the thirty-two negroes are accounted for, and brought into hotch pot, according to the primogeniture act.

At other times Charles Sinkler claims certain crops made by a number of slaves of which his father gave him the use from year to year, one of which crops he has received the money for, but not for the last crop, vizi, of the year *132and that those crops ought not to be brought into hotch pot. Whereas the other defendants contend .that the use of the slaves was no gift, but only done for the ^purpose of instructing him in planting, and that he ought to receive no share of the intestate’s real estate till he does so account.

At other times Margaret Sinkler insists 'the fifty one slaves, the one third of the real estate, and the use of the lands bequeathed to her by heríate husband, was a bounty *only;*and that the household and kitchen furniture and dairy, poultry, carriage and geldings, and the tenement and half lot in Meeting street-, were the only property-given in lieu of dower: whereas the other defendants contend that the whole was given for and in lieu of dower. That she hesitates to elect, and they insist that she ought to elect, in order that the estate might be settled.

All which involves complainant in anxiety and apprehension of future trouble. The bill prays that the parties interested may answer and interplead that the complainant may be instructed how to act, and saved from future responsibility in consequence of the jarring claims of the ■defendants.

The answer of Janies B, Richardson and Ann his wife, admits that James Sinkler in his life time possessed a large real and personal estate, and that some time in the month of February, 1798, he made and executed his last will in the presence of two witnesses only, d copy whereof is filed'with the bill. That testator died on the 20th Noy. 1800, leaving the same in force sufficient only to pass the personal estate and not the devises of land. That after making his will and not long prior to his death, the testator had another child born (a son) named James, an infant of tender years, and not provided for in the will by express words. Defendants wish this court may be able by a judicial construction of the will to raise a provision out of the estate for the infant,- That by the terms. of the devise, whereby the testator giyes to J. B. Richardson 13 ne-*133*groes*and part of a lot in Charleston and part of a tenement, it appears he intended the provision of this will to go in satisfaction of claims, which Mrs. A. C. Richardson had ^ upon her father for her portion of her grandfathers estate, which James Sinkler received while she was an infant; touching which the defendants begleave to state, that her said grandfather Charles Cantey being possessed of .a large real and personal estate, died on the 10th of October, 1780, intestate, and leaving among other children, his daughter, Mrs. Sarah Sinkler, wife of J. Sinkler, and this defendant, a granddaughter by Mrs. Sinkler, then deceased, who was also a daughter of Charles Cantey. That by the intestacy of Charles Cantey, the real estate' descended to his only son Charles, and the personal became divisible into eight parts, each living child entitled to a share, and this defendant, to the other share. That after the debts were paid, the administrators of the said Charles Cantey, proceeded to divide the persnal estate, and J. Sinkler drew two shares, one for his then wife, and the other for this defendant. That defendant’s father blended her share with his own *property;*but made no particular purchase as stated, no doubt considering himself responsible as trustee. Defendants admit that after their marriage, which happened about the 10th May, 1791, James SinklcSr gave to this defendant, J. B. Richardson, thirty-two negroes, as a marriage portion; hut did not intend, as defendants believe, the same to be in discharge of the claims they had upon him, respecting the estate of C. Canty. They understood he would compensate them in his will, and appeal to the terms of the will to prove this. In the said will, the testator expresses himself, that he meant the property thereby given, to be in lieu of the said claims, and that when the devises were taken together with the marriage portion, it would be a provision more than equal to his other children. The defendant, J. B. Richardson, and his said wife, believe if the interest and profits of Cantey’s estate should be added to the gross amount of the portion and the legacy, it would exceed the provision intended ,by testator; yet regarding *134the will and opinion of the testator, they would a.ccept of the terms of the will, if all the devises and bequests could pass, and they hereby offer to release their claims on Can-tey’s estate, if by this court the provisions of the will can decreed to them ; yet if the real estate should fail to pass, the defendants are constrained to seek a compensation for their claims on Cantey’s estate, and pray for an account thereof,

In denying that the thirty-two negroes were given in lieu of their cla- ms, these defendants speak so far as they understood. Whether the provision was disproportioned to his then estate (regarding his other children) it is of no weight to determine, as the property of James Sinkler was large, his other children young, and he might expect, as it really happened, it would greatly increase before any further allotment. And defendants hope this court will so regulate the assets of James Sinkler’s *estate,*as well for the payment of this as other debts of the estate, as to preserve a net distribution of such parts of the estate, of which the testator died intestate, so as to augment the dividend to the child, not in the contemplation of the father when he made his will. The defendants admit that the testator acquired considerable personal property after making his will. Defendants sSy if this court should not decree the thirteen negroes and the tenement to them, they must claim their interest in Cantey’s estate, and seek the aid of this court to have the specific property delivered to them, where it can be ascertained. That divers of the negroes bequeathed to Mrs. Margaret Sinkler, are of those that fell to defendant Ann C. Richardson on the division of her grandfather C. Cantey’s estate. If these should be taken from her, (Mrs. Margaret Sinkler) the defendants submit whether she would be entitled to compensation out of the residuary personal estate. Whether the provision made by testator for his wife is in lieu of dower or mere provision, defendants cannot answer, as it depends upon the construction of the will which is submitted to the court. That the various matters of doubt, and *135the conflicting interests in the bid set forth excite, and the peculiar difficulties of the case render it unsafe for executors to act.

That no compromise can be made, as two of the children, viz. Margaret Ann and James, are infants of tender years; and the defendants pray the aid of this court.

Defendant admits that James Sinkler died possessed of a considerable real and personal estate, and that on application to the ordinary, he judiciously recognized the paper, Jas filed in bill, and first executed as the late will and testament of said James Sinkler,) that complainant qualified thereunto. They further admit that the said James Sinkler left a widow, and the children named in bill, and submit that the right and interests of such of these defendants as are infant orphans, ought to be protected by this honorable court.

It appears that the property Mrs. James B. Richardson was entitled to from her grandfather C. Cantey’s estate, consisted of the following property:

A proportion of a tract of land, the property of her grandmother, which her grandfather held by the curtesy, and which on his death was divided. But on the division of the lands, the allotment to her being of inferior value, the difference was made good to her by the other heirs, who delivered her father Mr. J. Sinkler, five negro slaves on her behalf. When her father Mr. J. Sin-kler delivered her 32 slaves as her marriage portion, the above five formed a part of the thirty-two.

She was also entitled to 18 slaves, which her father received as her eighth part of the personal estate of her *grandfather;*some of whom Mr. J. Sinkler included in his legacy to his wife Mrs. Margai'et Sinkler j some he bequeathed to other legatees ; one he sold, and the remainder are claimed by the residuary legatees. One only was given to Mrs. J. B. Richardson on her marriage.

It was agreed that the testator had acquired considera*136ble personal property after making his last will; which as the law then stood, (since altered,) did not pass under his will, though there was a full residuary clause.

It was agreed t at Mr. James Sinkler had placed part of bis real and personal estate in the possession of his son Charles Sinkler, not as a gift, but to manage, with permission to apply the rents and profits to his own use duriug his father’s life.

The various questions which arose in this case were fully discussed by Mr. Parker for the complainant, and by Messrs. Desaussure and Ford, for the several defendants. But few notes of the argument have been preserved.

It was contended that Mr. Charles Sinkler was compel-lable to accoun for the rents and profits of the estate, placed under his care by his father. But it was conceded that the decided cases have established, that the English doctrine of hotch pot does not apply to cases of partial intestacy, as the application of it to such cases might produce and encrease the very evil intended to be remedied by that doctrine, to wit; an inequality among the children of the deceased parent.

It was contended that the provision for *the*widow was manifestly intended to be in lieu and bar of dower ; and that such intention will be operative without an express declaration that the provision by the will is in lieu of dower. It may arise by plain implication.

On the part of the widow, it was denied that there was any such plain implication as ought to bar h&r.

On the part of Mr. J. B. Richardson and his wife, it '--.was contended that he was entitled to recover all that she had a right to from her grandfather’s estate, (which had been received and held by her father Mr. J. Sinkler) without prejudice to her claim to what was given her as a marriage portion, or bequeathed her by the will of her father. But if she was to be put to her election as to the *legacy,*then she was entitled to an account for rents and profits of her property, kept and received by her father till his death.

*137And it was insisted that at all events, the defendant J. B. Richardson and wife, would be entitled to a distribu-live share of the undisposed personal estate of Mr. James Sinkler, retaining both the marriage portion and the ne- , ^ , ^ , groes bequeathed to her. ■

For the unprovided son James, it was contended that 'besides his proportion of the real estate, which had not been effectually disposed of by the will of the testator,he was entitled to a distributive share of every part of his father’s personal estate which was not effectually given by the will, or which was acquired after the making the will; and particularly, that he is entitled to a proportionate share of the funded stock, which was bequeathed to such of testator’s children as should be alive .when his youngest child should attain 21 years of age. He is included in the general words, and ought to be allowed to take a child’s share, though his father did not contemplate this child, (not then bom) at the time of penning the will.

After the argument, and time taken to deliberate, Chancellor Rutledge delivered the decree of the court.

There are four questions for determination in this case : 1st. Among whom the funded stock of the testator is to be divided ? 2nd. Whether the thirteen negroes bequeathed to the defendant J. B. Richardson, (if he refuses to take them on the conditions prescribed in the will) are to be considered as a part of the residue of the personal estate, and to pass as such by virtue of the residuary clause, or to be distributed agreeable to the statute ?

3d. Whether the produce of the two years crops received by C. Sinkler are not to be considered as an advancement, and brought into account for distribution, allowing him thereout a reasonable maintenance ?

4th. Whether the advancement to defendant J. B. Richardson, by the testator, (this being a case of partial and not a general intestacy) is to be accounted for by him m a distribution of the undisposed surplus personal estate ?

As to the first question, the testator has in express *138words directed, that the interest of his funded stock shall be applied to the sole use and education of his son Wil-°f^am’an^ daughter Margaret Ann ; and the principal to remain till his youngest child come of age or marries, and be divided among his children that may be then living; and his wife, if a widow. Though the testator, at the time of making his will, might not have contemplated any other children than those already *born;*yet as he made use of those general expressions, that the stock should be divided among his children who may be alive at a certain period, we are of opinion, the after born children (who are totally unprovided for by the will,) if then living, will be justly and equitably entitled to a distributive share equally with the rest.

On the second question, we are of opinion that the thirteen negro slaves bequeathed to the defendant J. B. Richardson, cannot be deemed a part of the residuary estate, and pass under the residuary clause of the will, because they are expressly bequeathed to J. B. Richardson on certain conditions, and not being bequeathed over in case of his refusal to accept them, they must be considered as part of the testator’s personal estate undisposed of and distributable.

3d question. Whether the produce of the two years crops received by C. Sinkler are not to be considered as an advancement, and brought into account for distribution, allowing him thereout a reasonable maintenance ?

From the evidence of Mr. Carson and Mrs. Sink-ler, it is plain that the testator had given the whole profits of certain lands and negroes to his son Charles, (who was his eldest son) to be received and enjoyed by him for his own advantage, without any responsibility *;*and that the testator was not thereafter to be answerable for any of his debts. His letters to his son, his receipt for money from the factors, and the directions which he gave them concerning a charge respecting some cotton gins which he ordered to be set down to his son instead of himself, confirm the testimony of the witnesses * *139but it was nevertheless only a temporary, not a permanent provision, to initiate him into the planter’s business, and to encourage him to be industrious. Whatever he made therefore was only a reward for his own labor and diligence, and ought not to be brought into account for distribution, his father never having intended it.

4th question. Whether the advancement to defendant J. B. Richardson by the testator, (this being a case of partial and not a general intestacy) is to be accounted for by him in a distribution of the undisposed surplus personal estate ?

The principal object of the statute of distributions is, to effect an equal distribution of the personal estate of the testator among his children, and has only in view a general intestacy. The act of assembly of the year 1791, abo» lishing the right of primogeniture, recognizes the dispositions of the statute, and goes one step further, by providing for a partial *intestacy;*i. e. as to property acquired after a testator has made his will, not having republished it, directing in such case how it shall be distributed.

The object, both of the statute and act of assembly, being a perfect equality among the children, they have pointed out (the act of assembly more precisely than the statute) the method, in a case of general intestacy, how it is to be effected. When a child has been advanced by the intestate in his life time, but not equal to the shares falling to the other children, the mode pointed out for equalizing him, is (not by bringing it into hotch pot) but by a valuation of the property advanced, as it may be estimated at the death of the ancestor (not taking the improvements of the real estate, or the increase of the personal estate into computation) and the difference is to be made up out of the estate to be distributed so as to make the estates of all equal.

The testator in the present case having by will disposed of all the personal property he then possessed, nothing remained to-be distributed. What has been acquired since the will was made, our law directs how it should be dis - *140tributcd. It is confessed that the personal property which testator has given to his other children by his will, is con» s^rably more than what he gave to defendant j. B. Richardson and his wife ; but as it is not a generad intestacy, °^the court cannot decree the difference to be made up to the defendant J. B. Richardson out of the surplus person* al estate, so as to put him on a footing with the other children. We are therefore of opinion that it is but just and equitable, and decree that he shall retain the negroes which he received from the testator for his marriage portion as he calls it, without any accountability ; and that he is entitled to a distributive share of the undisposed surplus of the personal estate, in common with the other children.— The case of Vachell and Jeffreys, as it is reported in Brown’s P. C. does not shake the authority of the same case as reported in precedents in chancery, (p. 169,) with respect to the determination of the question on a partial intestacy *;*the question on the appeal being solely on the right of the two children disowned by the testator, to a dis-r tributive share with those he owned. The other case in Precedents in Chancery (182) is opposed to that of Vachell and Jeffreys ; but we do not see how the Lord Keeper could give any opinion on that question, it not being a point made for his determination. It is decreed, that the* two houses and lots in Meeting-street, belonging to the testator’s estate, be forthwith sold by the master, giving the usual notice, on bonds and mortgage of ,the premises, with personal security if required, on a credit of 1,2 and S years j and the monies arising from the sale to be divi* ded agreeable to law. The shares of the minor children to be placed and kept at interest by the defendant Margaret Sinkler, their mother, for their benefit, suit to be paid out of the estate. The costs of