Kelly v. . McCallum

*566 Smith, C. J., after stating the ease. We think the ruling of the' court below correct and not liable to just complaint. No question is. made as to the construction of the will- in directing an equal distribution among the testator’s children,, and. that in the manner provided in cases of intestacy,, those who have received anything as an-advancement being called upon to account for the value of it before sharing in. the division of the residue, and we are not therefore called, upon- to put an interpretation, upon its language, and to say how far it is advisory and how far mandatory in, the expressions of the testator’s expectations* and wish. There was reserved by the devisee an.d legatee, upon., whom the trust of making an-equal distribution is imposed! by the testator, a large number-of slaves, more than enough to make the plaintiffs, equal to, the othersj and, their right, to be made equal, out of those reserved, had. the- slaves remained property, upon such construction of the will is, clear and undisputed. But the right of the jfeme plaintiff t.o this* equal prior allotment passed a,way with the-extinction of the-property in slaves, and th.e other children of the*, testator- suffer from, the- same cause the loss of theirs. Is it. in consonance with his expressed will that the loss, common to. all, and which could be averted by, none,,should be. borne alone by those who had been advanced, and made up, in part, at least, to.the other out of his land ?/ The equality contemplated in the final disposition -of the-estate was to- be secured by successive separations from the-common property, according to the sound discretion of the wife, “ as prudence may dictate,” and with a. due regard to, the condition and wants of her children and the accounting for advancements afterwards. This discretion she exercised as to two of them, and when the other arrived at full age in August, 1864, still living with her mother, the very, property from which her share was tobe taken had become by the inexorable logic of events of no measurable value, and a *567 few months later ceased to exist. There wae no unreasonable delay in allotting to the plaintiff her share in the slaves;, and it was rendered impracticable by their emancipation. The case, in some respects analogous,is not entirely sim’ ilar to an intestacy, where the children, previously not provided for have no direct interest in the property of their parent until his death, and then a right only to exclude such as have been advanced from participating in the distribution until property of equal value has been set apart to them. This is simply the law of distribution of an estate not disposed of by will. But under the testator's will, It is claimed and conceded that a present interest vests in each of the children, and the estate given to the devisee and the legatee is clothed with a controlling trust, fulfilled only by a final equal division, although admitting of intermediate advancements, as in the judgment of the trustee may foe suitable and proper. The cases .therefore cited in . the brief of the appellant’s counsel to .show that the value of property advanced, in case of intestacy, is not diminished by death or loss, nor enlarged by increase of growth subsequently accruing, have no application to the facts of the present case, which are governed by the wishes and directions expressed in the will'. It is further insisted that the judgment is .erroneous, in that, no answer was -made to the complaint by the defendants, Smith and wife, and the allegations must be taken as true as to them. The failure to .answer is .an admission of the facts alleged by the plaintiffs, and such is the effect of a judgment by default to which they are entitled. But it does not involve a concession of legal inferences drawn therefrom, and still less the recognition of the correctness of the principle of law stated. The office of pleading, with the intervention of a jury or other tribunal to determine what is controverted, is to arrive at an understanding of facts, and the law is administered not as a party may-haye al *568 leged but as it is declared by the court. Where by the assent of all, the facts-are found by the jury, on issues involving the relations, of each, the judgment must be rendered upon the verdict when it may differ from the allegations. . There is no error and the judgment is affirmed. Let this be certified for further proceedings, in the case. No error. • Affirmed..