Callender v. McCreary

[362] Opinion of the court by Mr. Justice Trotter. The 51st section of the Orphans’ Court Law, Rev. Code, p. 42, provides, that when any of the children of a person dying intestate, or their issue, shall have received from such intestate, in his life-time, any real or personal estate, by way of advancement, and shall choose to come into the partition and distribution of the estate with the other parceners or distributees, such advancement, &c. shall be brought into hotch-pot with the whole estate, &c. The only question which is presented for the decision of this court is, whether the slaves settled on the appellees by the marriage contract, above referred to, were received by Mrs. McCreary from her father, the intestate, in his life-time, and by way of advancement ? At the date of this contract, the slaves in question belonged to Mrs. Brazeale, who was then Mary L. Bane, and, for aught which appears from the record, were settled upon Mrs. McCreary by the bounty of a stranger. This does not enter into the legal idea conveyed by the term advancement, as it is understood at common law, or under the statute of distributions. For, by the terms of our act of distributions; as well as from the nature of the thing itself, the portion required to be brought into hotchpot must have been received from the intestate himself. And it has been held in England that what a child receives out of the mother’s estate, or from any other source than the intestate, cannot be considered an advancement. Toller’s Law of Executors, 380; 2 Peere Williams, 440. Such a provision as shall be construed as an advancement must result from a complete act of the intestate in his life-time, by which he divested himself of all property in the subject, and therefore property given or bequeathed to the child by any other person can never be so denominated. ibid. The cases relied upon by the counsel for the appellants do not, as we conceive, conflict with these principles. In all of them, the intestate himself was the source whence the portion was derived which was ordered to be brought into the residue of the estate. The judgment of the court below must therefore be affirmed.