Beckwith v. Butler , 1 Va. 224 ( 1793 )

*The PRESIDENT

delivered the opinion of the Court.

The answer of a defendant in chancery is not evidence where it asserts a right affirmatively in opposition to the plaintiffs demand. In such a case, he is as much bound to establish it by indifferent testimony, as the plaintiff is to sustain his bill. The appellant, who is the heir at law and executor of his father, swears in his answer, that the father in his life-time gave him Tayloe’s bond, the amount of which forms the great bulk of the personal estate sought to be distributed. It would be monstrous indeed, if an executor when called upon to account, were permitted to swear himself into a title to part of his testator’s estate.

As to the fraud charged in the bill, in the obtaining of a deed for the 14 negroes, it is not sufficiently proved. Some of the witnesses prove an incapacity in the donor to contract at certain times: but the subscribing w'itnesses swear to his capacity at the time of executing the deed, and as the settlement is by no means an unreasonable one, the court think it most proper and safe to establish it. It resembles the case of a will which was contested in this court, where the proof as to the state of the testators mind, when the will was signed, overcame all the testimony respecting his capacity both before and after. But then the negroes conveyed by this deed must be considered as an advancement, as to which a question was made at the bar, whether the encrease of the slaves, and interest on money advancements ought to be brought into hotchpot? The court are of opinion, that where a child is advanced with money, or negroes, he need not bring into hotchpot the encrease of the one, or account for the interest upon the other. For as he must sustain the loss, by accounting for the property at its value when given, and by supporting and raising the negroes, so he is entitled to the encrease of them. There does seem to be a hardship, where one son has been advanced for many years, that he should account with an unadvanced child only for the principal; yet no better rule than the above can be adopted.

Some objections were made at the bar to the mode pursued by the master, in ascertaining the value of the negroes advanced; but we are of opinion, that though the value seems to have been guessed at, it does not appear to be unreasonable either way, and as no exception is taken to the report, the objections now made ought not to be regarded.

The report is in favor of all the plaintiffs and is confirmed by the Chancellor. Yet a decree is given in favor of the Butlers Jfonly, without noticing Marmaduke Beckwith, another of the plaintiffs. This we suppose to have been a mistake of the clerk.

The decree therefore must be affirmed so far as it goes, and the cause remitted to the High Court of Chancery, for a hearing as to Marmaduke Beckwith.