Greene's v. Speer , 37 Ala. 532 ( 1861 )

STONE, J.

We have-.duly considered the single question presented by the assignment of error in this case, and are satisfied the judgment of.the probate court must be affirmed. Section -1582 of the Code, which declares the rule for bringing advancements into hotchpot, refers alone to estates of intestates. Looking only to this section, it would require bold interpolation to bring under its influence estates of;testators who left portions of .their estates undis-posed of by. their wills.

The argument for appellant rests mainly for its support (on section 1596 of the Code. The argument carries the language of the statute too far. It (the statute) provides only for “ property not disposed of by the will.” What property ? Certainly, property oioned by the testator at the time of Ms death; not 'property which,be had previously given off. This property “ must be administered and distributed as in cases of intestacy.”

The doctrine of hotchpot rests, for its justification, on the presumed desire of decedents to equalize the portions of all distributees standing in the same relation to them. In cases of intestacy, it operates-with justice and equality, for it bears alike on all who have been advanced. This would rarely be the case, where there is a will. In a majority of qases, parents, during their life-time, have made gifts, by way of advancement, to their -older children ; and when .they come to-make a will, they usually attempt to make up to the children not advanced, what they, in their discretion, intend as the equivalent of the advancements previously given off. In other-words, the advancements given off, and the bequests contained in the will, are, collectively, the distribution which the testator desires to make. Now, let it be supposed that a testator, after executing his will on the theory-' above supposed, should materially increase his estate by his industry, or by receiving.a legacy ; and, as to such after-acquired estate, should die intestate. Would not the doctrine here contended for lead to the most shocking inequality ? And yet, dn a majority of cases, this precise result would follow. Any rule we may lay down, in reference to advancements and hotchpot in cases of partial intestacy, must be uniform, and operate alike in all cases, unless the testator has given express directions to the contrary. We think a rule which should require advance-nrents to be brought in, in cases of partial intestacy, would work much greater oppression, than to follow* the letter of section 1582 of the Code, and limit the doctrine to cases of intestacy proper.

We have thus far considered this question on the language of the statute, and the spirit which dictated‘its enactment. The authorities, both English and American, fully sustain our views. Sir Wm. Grant, speaking of this doctrine, said : “1 conceive, the, provision in the statute of distributions applies only to the case of actual.intestacy.” Walton v. Walton, 14 Vesey, 324. Chief-Justice -Ruffin, in Donnell v. Mateer, (5 Iredell’s Equity, 11,) said: “With respect to a personal residue, it'has been always held, that it is to be divided equally amongst the next of kin,without regard to gifts, cither, in the life-time of the testator, or by his will.” In Thompson v. Carmichael, (3 Sandf. Ch. 129,) it was said; “ When,one has advanced a part of his children, and then by will devises property to the residue, leaving other property, undisposed of; it is a legal and reasonable presumption, that- he intended the latter to go to both classes of his children equally, if any of it remained at his death.. As to one class, he has been his own executor; as to the other, he has. by bis will placed them on an equal footing with the first class.” To the same effect are Twisden v. Twisden, 9 Vesey, 426 ; Johnson v. Johnson, 4 Ired. Law, 9 ; Sinkler v. Sinkler, 2 Dess. 139 ; Snelgrove v. Snelgrove, 4 Dess. 291 ; 2 Wms. on Exrs. 1286 ; 2 Lomax on Exrs. 355, § 15 ; Newman v. Wilbourne, 1 Hill’s. Ch. 10.

Decree affirmed,,.