The language of the law. Part Latin, part Anglo-Saxon, all confusing.
It’s not a pot to boil water in, and it certainly wouldn’t be anybody’s first choice to plant flowers. It wouldn’t be involved in calling the kettle any names, but like its proverbial cousin it’s always referred to with the definite article — “the”, not “a” — if an article is used at all.
It is, however, a kind of pot that genealogists run into all the time in the records, even if it’s often not called by its proper name in those records.
It’s the hotchpot.
“The what?” you say. The hotchpot. Or just hotchpot. From the Anglo-French hochepot.1 Hotchpot. (Don’t mind The Legal Genealogist… it’s just one of those wonderful old words that are so much fun to say that I had to repeat it. Go ahead. Try it. Say it out loud. Hotchpot.)
So what is it and why should you care?
Once upon a time, in England, it meant “the mixing and blending of lands given to one daughter in frank marriage, with those descending to her and her sisters in fee-simple, for the purpose of dividing the whole equally among them; without which the daughter who held in frank marriage could have no share in the lands in fee-simple.”2
Yeah. Right. That’s really clear, isn’t it? Seems that if you gave your daughter and her husband some land and limited the inheritance of the land to pass only to the descendants of both the daughter and her husband, that’d be land in frank-marriage.3 If you kicked off without a will, and your daughter wanted a share of the rest of your lands with her sisters (and that’d be without that inheritance limit), she had to give her frank-marriage land back into the mix and then take her share of the whole.
And that whole was called the hotchpot.
The word is still used in very much the same way when it comes to any estate where the decedent either didn’t leave a will or didn’t account for some property in the will and one or more of the kids (or heirs) got something from the decedent as an advancement on his, her or their share of the estate.
In this context, advancement has a very specific legal meaning: it’s not a loan or a gift, but instead it’s money or property given to a child (or heir) with the understanding that it’s going to be deducted from that child’s share of the donor’s estate.4
Let’s say Father has one son and one daughter and 30 acres of land, and he gives the son 10 acres as an advancement when the son marries. If the son wants a share of the other 20 acres when Father dies, he has to return the 10 acres to the hotchpot and he and his sister each get 15 acres of the total 30. That’s an easy case.
Let’s say, instead of land, Father gives the son money and the money has been invested with interest. Or Father gives the daughter a slave and, by the time Father dies, the slave has children. Now it’s more complicated. The rule generally was that only the property given has to be returned into the hotchpot; the profits aren’t included.5
Now let’s say Father has four children, three sons and a daughter. During his lifetime, he gives an advancement of 250 acres of land to each of the sons, then dies without a will while owning a tract of 1,000 acres. Again, if the sons want a share of that 1,000 acres, they have to give the 250-acre tracts back into the hotchpot.
But what if one of the 250-acre tracts is prime real estate and the rest of the 1,500 acres is mediocre? Now it gets really complicated.
The first thing that would happen would be that the son with that particular tract might very well decide not to try for a share of the 1,000 acres and just keep what he had. Most states allowed that.6 The second thing would be that the other brothers and sister would probably file suit.
And you know what that means, don’t you? Records. Lots and lots of court records. Whether the property ever goes back into the hotchpot or not, there would still be all those lovely records that we genealogists treasure so dearly.
Records that say things like “Fanny Lacy, widow, and Lydia Lacy and others, children of Thomas B. Lacy,” filed suit alleging that, “on the 8th day of December, 1794, William Hopkins, late of New Kent, father to Mrs. Lacy, executed a deed of gift, whereby he lent to her, for life, a mulatto girl, Helvia, and, after her death, to be equally divided among her children;” and “that Lacy, the husband, died in January, 1802.”7
Or things like “On the 10th of November, 1825, Barna Collins made his last will,” naming his wife, Mercy Collins and his daughter Lucy and Caroline, the latter of whom “with her husband Henry B. Porter, appealed from the decree” that challenged the way certain sums advanced to Lucy were handled in the hotchpot.8
Or things like John Daniel “married a daughter of the decedent,” Nathan Grey, and “James D. Grey, a son of the deceased,” testified against him in a will contest designed to force Daniel to put money received into the hotchpot.9
Or things like “on the 11th day of October, 1839, a patent was issued … in favor of Francis Hardy Robinson, … Hardy Robinson was the father of Francis Hardy, … the plaintiffs are all children of Hardy Robinson, and full brothers and sisters of said Francis Hardy, who died before his father, and without being married or having any lawful issue. … Hardy Robinson, the father, survived his son, Francis Hardy, several years and died before suit. … Francis Hardy had no mother living at his death.”10
Now don’t think that this is just an antiquated term never to be encountered in the modern era. The case of Lane v. Henderson was decided by the Mississippi Court of Appeals in 2005. The issue there? Whether a deed should be revoked on grounds of undue influence and the land “added to the hotchpot of the … estate.”11
And oh by the way… folks who hail from civil law jurisdictions like Louisiana shouldn’t feel too deprived. The same principle of law applies there too: any property received as an advance has to be returned (or accounted for) in the estate so that an even division may be made among all the heirs.12
But there it’s called collation, and collation isn’t nearly as much fun as a word as hotchpot.
Hotchpot. (Go ahead. Say it out loud.)
Image adapted from Open Clip Art Library.
- Merriam-Webster Online Dictionary (http://www.m-w.com : accessed 6 Aug 2012), “hotchpot.” ↩
- Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 581, “hotchpot.” ↩
- Ibid., 516, “frank-marriage.” ↩
- Ibid., 43, “advancement.” ↩
- John Bouvier, A Law Dictionary Adapted to the Constitution and Laws of the United States of America and of the Several States of the American Union, rev. 6th ed. (1856); HTML reprint, The Constitution Society (http://www.constitution.org/bouv/bouvier.htm : accessed 6 Aug 2012), “hotchpot.” ↩
- See generally Benjamin Vaughan Abbott, United States Digest … of Decisions, 1st series (Boston : Little Brown, 1879), 1: 142-149; digital images, Google Books (http://books.google.com : accessed 6 Aug 2012). ↩
- Lacy v. Wilson, 18 Va. 313 (Va. 1814). ↩
- Porter v. Collins, 7 Conn. 1 (Conn. 1828) ↩
- Grey’s Heirs v. Grey’s Adm’rs., 22 Ala. 233 (Ala. 1853) ↩
- Galloway v. Robinson, 19 Ark. 396, 397-398 (Ark. 1858). ↩
- Lane v. Henderson, 930 So. 2d 421, 423 (Miss. Ct. App. 2005). ↩
- Black, A Dictionary of Law, 220, “collation.” ↩