Opinion
(December Term, 1854.)
Where the two daughters of an intestate die in the life-time of their father, the one leaving two children and the other one, distribution must be made of his estate among these grand children per capita.
Grand children taking, in their own right, are not chargeable with advancements made to their deceased parents.
APPEAL from the Court of Equity of TYRRELL County.
Gilliam for plaintiff.
Heath for defendant.
Joseph Halsey died in the year _____, leaving two grandchildren, Joseph Halsey Skinner and Sarah Halsey Skinner, infant children of his deceased daughter Anne, and another grandchild, Joseph Halsey Wynne, infant child of his deceased daughter Sarah.
Both the daughters of Mr. Halsey, died in the life time of their father, leaving husbands surviving them, but he had no other children, nor any descendants of such besides the three grandchildren mentioned above.
Mr. Halsey, during the life of his daughter, Mrs. Skinner, put (42) into her husbands possession several slaves without any written conveyance, which the husband sold and made use of the money, without rendering an account therefor.
He also, without writing, put into the possession of Mr. and Mrs. Wynne, one negro slave which he sold and made use of the money, without accounting for the same.
The bill is filed by the two children of Mrs. Skinner against the administrator of their grandfather, and against the other grandchild of J. H. Wynne, praying an account and distribution of the estate. The bill alleges that there were no debts but those which have been paid off, and there is no reason for the administrator's keeping the property in his hands any longer. It prays that distribution be made per capita.
The answer of the administrator admits the facts above set forth, but says that two years have not yet elapsed since he administered, and that he ought not to be decreed to account before the end of that period. As to the mode of distribution, and the other questions arising out of the estate, he submits them to the Court.
The defendant, Joseph H. Wynne, answers by his guardian, Mr. Simmons, and commends his interests and rights to the protection of the Court. The cause was set for hearing on the bill and answers, and his Honor decreed that distribution be made per capita, and that an account be taken by the master. From which decree the defendant, J. H. Wynne, appealed to the Supreme Court.
Upon the argument in this Court, two points were made for the defendant, Wynne: first, that in right of his mother, he was entitled to one half of the personal estate of his grandfather.
2nd. That the advancements to their fathers, should be accounted for in the distribution, and a proportionate deduction made.
Joseph Halsey died in the year _____, intestate, and administration on his estate was granted to H. G. Spruill, one of the defendants. The intestate left three grandchildren, Joseph (43) Halsey Skinner and Sarah Skinner, whose mother, a daughter of the intestate, died before him, and Joseph Halsey Wynne, whose mother also died before the intestate. The two first grandchildren are plaintiffs, and the third is a defendant. The bill is filed to settle the estate of Joseph Halsey, and prays an account and partition of certain slaves.
Two years had not elapsed from the qualification of the defendant, Spruill, as administrator of Joseph Halsey, to the filing of the bill. It was conceded that the estate was settled, so far as the debts were concerned. Two years are allowed executors and administrators to settle the estate of the deceased, upon the supposition that many estates cannot be settled in less time, but this is intended as an indulgence to them. — Turnage v. Turnage, 42 N.C. 127, and when there are no debts to pay, it is the duty of the representative to pay the legacies or distribute the estate without waiting for the expiration of the two years. The principal question is as to the right of the grandchildren of the intestate, in the division of the property to which they succeed. Do they take per capita or per stirpes? The exact case is put by Justice Blackstone in the 2nd Vol. of his commentaries, page 517. "If the next of kin of the intestate be three brothers, A, B, and C, his effects are divided into three equal portions, and distributed per capita, one to each, but if one of these brothers A, had been dead, leaving three children and another, B, leaving two, then the distribution must have been per stirpes, namely, one third to A's three children; another third to B's two children, and the remaining third to C, the surviving brother. Yet, if C had been also dead without issue, then A's and B's children being all in equal degree to the intestate, would take in their own rights per capita, to wit: each of them one fifth part." The negroes in controversy are to be divided into three parts, and each of the infant grand children is entitled to one part, taking per capita. Taking per capita, in their own right, they do not account for the advancements made to their respective parents. There must be a reference to the master to take an account of the estate of Joseph Halsey, in the hands of his administrator, (44) and also to divide the slaves named in the bill between the three grand children of Joseph Halsey, and the case is retained for further directions.
Per curiam.
Decree accordingly.
Cited: Nelson v. Blue, 63 N.C. 660; Ellis v. Harrison, 140 N.C. 445; In Re Estate of Bullock, 195 N.C. 189; In Re Estate of Mizzelle, 213 N.C. 369; In Re Estate of Poindexter, 221 N.C. 247.