Toomer v. . Toomer

Counsel

Haywood for plaintiffs: The words providing for hotchpot, in the act concerning the descent of real estates, 1784, ch. 22, sec. 2, were nearly the same as those used in the act for distribution of personal estates. They were of the same import, and for the same end and purpose, namely, to establish equality amongst the shares. But hotchpot is not required under the act for distribution of personal estates, unless the case be such as is mentioned in the act, that is to say, a case of total intestacy. The case now before the Court is not one mentioned in (369) the act in which hotchpot is to be used; the case mentioned in the act is where one shall die intestate; here he did not die intestate , for he left a will. As to the valuation in case the advancement is to be brought into hotchpot, it has often been decided in the case of personals, and was so decided in this Court the other day, that the valuation shall be as the advancement was worth at the time of the gift. I can see no reason why the realty should differ from the personalty in this respect. E contra , it was argued by Jocelyn and Gaston that hotchpot existed at common law amongst copartners (Co. Litt., 176), and, therefore, in cases of division under the act, supposing hotchpot not be to be expressly provided for, it should nevertheless take place. But in truth the act operates upon every case where a part of the realty is left undisposed of; for then he is intestate as to that part, and all the same rules apply as in case of any other intestacy. Curia advisari . And at the end of the term.