To Charles Clay
Poplar Forest July.1 1. 16.
Having never had an entire view of the facts & proceedings in the partition of mr Davis’s estate, & percieving it has become entangled by some irregularities, I can only give detached opinions on certain parts of them, & these too under the risk that they may be affected by circumstances of which I am not apprised.
On the general subject of Hotchpot I may safely say that, as regards the real and personal property of a decedent, these two masses are to be considered and divided as separately and distinctly as if they had come from two different ancestors. no law has made either a fund for correcting inequalities in the partition of the other.
The law of Hotchpot as to lands arose under the Common law, at a time when personal estate was so generally inconsiderable, that the law noticed it no otherwise than as a fund to pay debts, abandoning the surplus, if any, to the administrator, for pious purposes. it was not till the statute of Distributions that the rights of relations to the personal property of a decedent were recognised and sanctioned by the legislature, the portions of each defined, and the principles of hotchpot introduced into the distribution of that species of property also. but this statute respected personal estate only; taking into account no advancement from any other fund. our act of distribution is an exact copy of that statute, and confines itself by express words to personal property only.
At the Common law there could be no occasion for hotchpot in the descent of lands to the eldest male in the line of inheritance it was only therefore when they descended to, or through, females that the law had provided that each parcener, on partition, should bring into hotchpot any lands she had recieved, by way of advancement, from the decedent in his lifetime: and it was confined strictly to advancement in lands. when we changed the course of descents, & made lands partible equally, among males and2 females, we extended the law of hotchpot equally to partitions among both sexes. but the act expressly confines itself to advancement in lands only; taking no notice of personal estate; this having been provided for in another act, and as a distinct subject. these two classes of property therefore being under the regimen of different laws, and going, in some cases, in different courses of succession, have, on partition, no relations with each other, and are subject to hotchpot, each within itself only, and separately from the other.
The bond given to mr Clay by mr Davis in his lifetime, was an advancement of personal property,3 the law not enquiring from what source the decedent had raised that money, whether by the profits or sale of lands, or how otherwise; and it is to be brought into hotchpot on a distribution of the personal estate only, and according to the sum actually recieved. for had it never been recovered, it would have been no advancement at all, nor would have had any value to be brought into account: or had a part only been recovered, that part alone must have come into hotchpot, and, as so far only, an advancement. but I think the whole sum recieved must be taken into account, without any deduction for interest on the instalments not then due. for mr Davis only gave the debt as he held it; without obliging himself to make it ready money, or even to ensure it’s recovery at all. in like manner no subsequent inter[est] on the sums recieved is to be brought into hotchpot, the law requiring the principal only to be brought into account.
The selection of Commissioners, and some of their proceedings, have been obviously exceptionable: and will doubtless be corrected on an appeal from the final decree: and altho’ the act of the last session does not give an appeal from any interlocutory decree pronounced before it’s passage, yet should new occasion offer, or be produced, for another interlocutory decree, an appeal from that may be taken under the new law, and the whole4 proceedings be removed to the superior court: and as that court is now to retain and finish the cause, they will, of course, as a basis for a correct decree, rectify all errors in the preceding stages.
If any new matter of fact has come to light, which was not known, or could not be obtained, when depositions were taken in the cause, or when the bill was filed, it may be availed of, either by an amended bill, or by a bill of Review.
I recollect no advantages which a proceeding by Supersedeas, rather than by Appeal, would have in this case. but, in matters of practice especially, I distrust my memory, and may say generally, and truly,
|—obstat mihi tarda vetustas;|
|Multaque me fugiunt primis spectata sub annis;|
|Alia tamen memini.—|
You must accept these ideas therefore, with all their doubts about them, not as rescripts of certain law, but as testimonies of my wishes, by any suggestions within my present reach, to aid in disentangling the perplexities of your case, and of my sincere friendship and esteem.
PoC (DLC); corner torn; at foot of first page: “Mr Clay”; endorsed by TJ. Mistakenly recorded in SJL in the column for letters received.
Clay had a financial interest in the partition of mr davis’s estate through his wife, Editha Landon Davies Clay (DVB description begins John T. Kneebone and others, eds., Dictionary of Virginia Biography, 1998– , 3 vols. description ends ). Her father, Henry L. Davies, died intestate in 1808 (Arthur Davies et al. v. Benjamin C. Davies et al. [Vi: Bedford Co. Chancery Causes, case 1812–001]). The British statute of distributions, enacted in 1670, was “An Act for the better setling of Intestates Estates” (The Statutes: Revised Edition [1870– ], 1:767–8). Virginia’s act of distribution of October 1705 was “An act for the distribution of intestates estates, declaring widows rights to their deceased husbands estates; and for securing orphans estates” (Hening, description begins William Waller Hening, ed., The Statutes at Large; being a Collection of all the Laws of Virginia, Richmond, 1809–23, 13 vols.; Sowerby, no. 1863; Poor, Jefferson’s Library, 10 (no. 573) description ends 3:371–6). Late in the 1770s TJ drafted a statute adopted in 1785 that changed the course of descents and ended the use of primogeniture in cases of intestacy in Virginia (PTJ description begins Julian P. Boyd, Charles T. Cullen, John Catanzariti, Barbara B. Oberg, and others, eds., The Papers of Thomas Jefferson, 1950– , 39 vols. description ends , 2:305–24, 391–3).
obstat mihi … alia tamen memini (“time has blurred my memory, though many things which I saw in my young years have quite gone from me, still can I remember much”) varies only slightly from Ovid, Metamorphoses, 12.182–4 (Ovid, Loeb Classical Library, trans. Grant Showerman, J. H. Moreley, and Frank Justus Miller, [1914–29; rev. George P. Goold, 1977–9], 4:192–3).
1. Reworked from “June.”
2. Word interlined in place of “as well as.”
3. TJ here canceled “only.”
4. Word interlined.
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