Opinion
(June Term, 1860.)
1. Where a father joined in a deed with his sister, giving to certain of his children property that had been intended for them by another sister, whose will to that effect failed to be executed from accident, the father and sister being the next of kin and sole distributees of the deceased sister, it was Held, that in the distribution of the father's estate, these children were not bound to bring in this property as an advancement.
2. Where things given by an intestate father to his daughters were such as were needed on their starting in life, and were calculated to aid and advance them, there being nothing to show that they were not intended as advancements, it was Held that they must be so considered.
CAUSE removed from the Court of Equity of CRAVEN.
J. W. Bryan for plaintiff.
Haughton and Green for defendants.
The bill is filed by the administrator of George S. Attmore, asking the direction of the court in the distribution of the personal estate of the intestate. He states, as difficulties in the way of a settlement, that his three daughters — Hannah (now the wife of William H. Oliver), Sarah (the wife of Robert S. Primrose), and Rebecca Attmore — claim to hold certain articles of household furniture as gifts from the intestate in his lifetime, and that they ought not to bring them into hotch-pot. Hannah, on the death of her mother several years ago, took charge of the household affairs of her father and managed the same, at his request, until her marriage; and while so residing and managing his business, he gave her a bed and bedstead, a wardrobe, two bureaus, and a (374) washstand, being furniture in the chamber which she occupied. To his daughter Rebecca, who always resided with him, her father gave a bedstead, bureau, wardrobe, and washstand, furnishing it for the chamber which she occupied; and to Sarah, on her intermarriage with the defendant Primrose, he gave a set of bedroom furniture, consisting of wardrobe, bedstead, washstand, bureau, chairs, etc., and states that he is doubtful as to his duty in the premises, and desires a declaration of the court for his protection. He likewise sets forth that the intestate, in his lifetime, conveyed by deed a number of slaves and other property to Sitgreaves Attmore, his son, which he claims to hold without bringing the same into hotch-pot, under the following facts: Miss Sophia E. Attmore, a sister of the intestate, had prepared the draft of a will for the disposition of her property, in which she gave to the defendants Hannah and Sarah each five shares of bank stock; to her sister Mary R. Attmore $1,000; to some more distant relations smaller legacies, and the bulk of her estate to her nephew, the defendant Sitgreaves Attmore, which draft she showed to the intestate, desiring to execute it as her will; the latter, who was an attorney-at-law, took the paper for the purpose of putting it into a more formal shape, and did so, observing the exact bequests as contained in the draft, but his sister had become too ill to execute the will when it was prepared and brought to her, and she died without ever having done so. The intestate George S. Attmore and his sister, Miss Mary R. Attmore, were the next of kin of Miss Sophia Attmore, and as such entitled by the statute of distributions to all her estate. They agreed that the desires of their sister should not be defeated by the accident which had occurred, and they joined in a deed conveying to the defendant Sitgreaves all the property their sister had attempted to bequeath, in trust, to dispose of the same in exact accordance with the provisions of the script which the intestate had prepared, which provisions are recited in said deed. The defendant Sitgreaves administered on his aunt's estate, and made the distribution of it according to (375) the terms of the deed above recited, paying to the several persons designated the several sums, and delivering to them the specific property as therein provided, and retaining the residue for himself. The question is as to the property thus conveyed to him by his father, whether he is bound to account for the same as an advancement; and the same question occurs as to the defendants Hannah and Sarah, to whom the bank stock was given by the deed. The answers of the defendants do not vary the above statement. The cause was set down to be heard upon the bill and answers and sent to this court.
An advancement is a gift by a parent to a child of a portion of his estate, in anticipation of the whole or a part of the share to which the child would be entitled at the death of the parent, under the statute of distributions, in the event of his dying intestate.
In respect to the gifts of the several articles of furniture made by the intestate to his two daughters, Rebecca and Sarah, there is nothing to show that he did not intend them for advancements. Such things are needed by daughters when they start in life, and the presumption is the parent intended to aid or advance them by those gifts. In respect to the gift of similar articles to his daughter Hannah, the circumstance that she continued after her marriage to live with her father and took charge of his house and household affairs (his wife being dead), for aught that appears, was an arrangement mutually convenient and agreeable to the parties, and is not sufficient to bring her case within the principle laid down by Winburn, part 3, sec. 8, pp. 28, 234: "If a son has deserved a good turn at his father's hands, this is no advancement, but a recompense of that which was formerly deserved," so it must also be treated as an advancement.
(376) The gift made to his son Sitgreaves by the deed executed by the intestate and his sister Mary Attmore stands on a different footing. There is a well-established principle of equity which prevents it from being treated as an advancement.
Where creditors compound with a debtor and agree to release their debts upon his paying, say, 50 cents in the dollar, if one of them has taken from the debtor a covenant to pay the full amount of his debt, equity does not permit the covenant to be enforced on the ground that it is a fraud upon the other creditors, who were induced to enter into the arrangement because they supposed all did so. So a secret agreement in fraud of the relations of one of the parties to a marriage by which a part of the fortune paid is to be received back will be relieved against in equity. Adams Eq., 180. Upon the same principle, it is clear that if the intestate had, before executing the deed in question, taken from his son a covenant to pay back to him his share of the property conveyed by the deed, equity would not have allowed the covenant to be enforced on the ground that it was in fraud of the intention of the sister, who was induced to give her share because she supposed that her brother was likewise giving his share, and her object in joining with the brother was to give effect to the intended gift of their deceased sister, from whom the property was derived.
The effect of treating the property conveyed by this deed as an advancement by the intestate to his son is precisely the same as if the son had paid his share to the intestate in his lifetime, so as to let it devolve as a part of his estate, for the estate is made just that much greater, and each child's part is just that much more; and the naked question is, shall that be done by operation of law which equity would not have permitted the parties to do directly? Surely not.
There is this further consideration: Miss Mary Attmore provides in the deed for the payment to her of the $1,000 which the deceased sister intended to give to her, showing that her object was to carry precisely into effect what was known to have been the wishes of their deceased sister, and leading to the inference that if she had supposed (377) her brother was to take back his share, either directly or indirectly, by having it treated as a part of his estate after his death, and thereby disappoint the intention of the deceased sister, she would have kept her own share, to do with it as she pleased.
The bank stock which is given by the deed to Hannah and Sarah, two of the daughters of the intestate, evidently stands on the same footing with the gift to his son and cannot be treated as advancements, the intention being that they should receive this stock, not as a gift from their father and Aunt Mary, but should take it in the light of a gift from their deceased aunt. No one can read the deed and fail to see that such is the true meaning and intent, and to feel gratified because there is no principle of law to interfere with the praiseworthy purpose which actuated both the brother and sister in executing the deed.
PER CURIAM. Decree accordingly.
Cited: Thompson v. Smith, 160 N.C. 257.