From Edmund Randolph
Richmond June 29. 1801.
My dear sir
I beg you to attribute my late delay to any thing, but inattention to your wishes. I have not only been hurried off from home, since I wrote to you last, but returned, and found another court, which, from the involution of jurisdictions by the Act of the Congress, which expired with Adams, I had utterly forgotten.1
In your favor of March 25. 1801. the three additional questions, of which I inclose a copy, are made. Altho’ they may be touched in my original letter, I answer thus.
1. Where lands are brought into hotchpot by the operation of law in case of an intestacy, the value at the time of the advancement—not at the time of the division—prevails. This has been adjudged. The same rule holds, where the hotchpot is created by a will; unless the will creates a different mode.
2. The bequest of negroes and other personal estate to the testator’s children does not exclude the representatives of those, who died between the date of the will and his death.
3. The county-court sitting in chancery has a jurisdiction in matters of partition, commensurate with the high court of chancery, where the parties (defendants) are within the reach of its process. Partition is a source of chancery-cognizance; and infants and all persons may be bound by a decree, rendered in the usual stile of an amicable suit. So too partition may be enforced at common law under our act of assembly. But a sale of real estate is impracticable, on the principle of mere convenience. Debts, for which the heirs are bound, as specialties under seal, may demand satisfaction, out of the real estate, by an action of debt at common law against the heirs, or even a bill in chancery: but real estate will not be suffered to be taken, while the personal estate is sufficient. No other debts, than those founded upon such specialties can subject real estate.
Whatsoever is to be done in chancery will be more accurately and with equal expedition done here. Mr. Wythe would settle any business of this kind in vacation.2
You notice in your letter of April 23. 1801. my reference to Hoomes v Hoomes, as being difficult to reconcile with the subjoined observations. The purpose of the quotation was to shew, that legacies in a residuum do not lapse, as in ordinary cases; because the survivors take it. Still, however, the representatives of children born between the date of the testator’s will and death may be, as they here seem to me to be, let in by the will to a succession to their parents share.
I thank [you] for the new specimen of Mr. Jefferson’s talents.3 I am ever my dear sir Yrs. very warmly