Opinion
(June Term, 1855.)
Where an intestate had put slaves into the possession of his child, and afterwards made a deed of gift of them, the advancement must take effect and be estimated as of the date of the deed, and not of the commencement of the possession.
Property put into possession of a child on his setting out in life, suitable to house-keeping and family purposes, is not to be considered as a present but as an advancement.
Property given to grand-children is not liable to be brought into hotchpot.
CAUSE removed from the Court of Equity of Jones County. (138)
J. W. Bryan for plaintiffs.
No. Counsel for the defendants.
The bill was filed by William E. Shiver and Hannah his wife, and by John M. Parsons, who are the grand-children of Martin F. Brock, dec'd., against Daniel S. Brock, his administrator, and against Edmund H. Brock, Mary F. Konegay (since married to Massillon) Eliza Jane Brock, Susan C. Brock, and James Brock, who are the children and (with the plaintiffs) the next of kin and heirs-at-law of the intestate, also against Zaccheus Smith who is the administrator of another daughter now dead.
The bill claims for the plaintiffs one-sixteenth of the estate, being the eighth part, to which their mother, Elizabeth Parsons, would have been entitled had she survived and alleges that the other children, seven in number, would have been entitled to one-eighth each, only; that several of them, particularly the defendant Daniel, had been advanced in land, slaves, and other property, in the lifetime of the intestate. The only questions urged upon the consideration of this Court are respecting these advancements, and certain other advancements, which the defendants allege were made by the intestate to the plaintiffs.
The cause was referred to the clerk and master to state the account, and on the coming in of the report the defendants and plaintiffs both filed exceptions. These exceptions raise the questions submitted:
DEFENDANTS' FIRST EXCEPTION.
In his report the master charged the defendant Daniel with the value of three slaves, Simon, Plutus, and Green: The mother of these slaves, Leah, had been put into the possession of the defendant Daniel, in 1841, and the children were born after that time. In 1847 the intestate made a deed of gift of Leah and the three children to this defendant, and it was contended by him that the advancement must take effect as of the time when Leah was first put into his possession and consequently that the children born after that date were his own property, and not liable to be brought into hotchpot: but the master, considering the advancement to take effect from the date of the (139) deed of gift, set down the value of the whole-four as a charge against him. This is the ground of the defendant's first exception.
DEFENDANT'S SECOND EXCEPTION.
The intestate, several years before his death, had put into the possession of his son Daniel, the following property, to wit: a horse, some cows and hogs, a bed, some chairs, a table, some bacon, corn and lard, amounting in value to $299: it was insisted by him that these articles were intended as presents, and ought not to form a charge against him, and being so charged, the defendant Daniel made it the ground of exception.
DEFENDANT'S THIRD EXCEPTION.
The intestate, in his lifetime, had given the defendant Daniel a deed for two tracts of land, and upon a petition, in the County Court of Jones, for a partition of the lands of the intestate, this defendant had refused to bring his advancement into hotchpot: it appearing that the lands thus advanced were greater in value than what he would have taken by descent, it was insisted by the plaintiffs that that excess ought to be brought into the account, and deducted from his share of the personalty, which was accordingly done by the master: and this forms the ground of the third exception of the defendant Daniel; because, as he insisted, the real estate was advanced before the Act of 1844, ch. 51.
THE FIRST EXCEPTION BY THE PLAINTIFFS.
Two slaves, Lucy and Derry, had been put into the possession of Mrs. Parsons, on her marriage, and so remained during her life: after her death, the intestate made a deed of gift for these slaves to her children, the plaintiffs, and they insisted that this advancement ought not to be charged against them: the master having allowed it as a charge, the plaintiffs make it the ground of exception.
PLAINTIFFS' SECOND EXCEPTION.
Several articles, to wit: horses, cattle, sheep, and one bed, were given to the mother of the plaintiffs by her father, the intestate, on her going to house-keeping, and it was insisted that, from (140) their nature, these were intended as presents, and ought not to be charged against them. The master made the charge however, and the plaintiffs except on this account.
The cause was set down for hearing on the bill, answers, exhibits, the report and exceptions, and former orders, and transmitted to this Court.
The bill is filed for on account and partition, and on the hearing, an account was ordered. The master made his report and each party filed his exceptions.
The exceptions of the defendant are all over-ruled.
The first exception: because, although the mother of the slaves Simon, Plutus, and Green, had been put into the possession of the defendant, yet his possession had not ripened into an advancement; for before the death of the intestate, the defendant accepted from him a deed of conveyance, both for the mother and her children. Hill v. Hughes, 18 N.C. 336, Hicks v. Forrest, 41 N.C. 528, and the slaves are to be considered and advancement from the date of the deed.
The second exception is over-ruled. The articles furnished him, were so furnished him on setting out in life, and were necessary for his plantation and advancement. Meadows and Meadows, 33 N.C. 148. 2 Williams on Ex. 923.
The third exception is over-ruled. By the Act of 1844, the real and personal estate are made one fund in respect to advancements; the defendant can claim no portion of the slaves without accounting for the land, as the Act operates upon the partition. Headen v. Headen, 42 N.C. 159.
The first exception of the plaintiff is sustained. The slaves, Lucy and Derry, were by the intestate given to the grand-children by deed. The grand-children are not entitled to a distributive share in their own (141) right, but as representing their parent; the gift to them is not an advancement, and is not to be brought by them into hochpot [hotchpot]. Headen v. Headen, 42 N.C. 159. Daves v. Haywood, 54 N.C. 253.
The second exception is over-ruled, for the reason assigned for overruling the second exception of the defendant.
The report is confirmed in all things, except to the plaintiff's first exception and the matter is referred to the master, to be reformed agreeably to this opinion.
Per curiam.
Decree accordingly.
Cited: Tart v. Tart, 154 N.C. 505; Lunsford v. Yarborough, 189 N.C. 478.