77 N.C. 367 | N.C. | 1877
This proceeding was instituted by the plaintiff as executor of John Harrison against his legatees and W. T. Dortch, executor of his (Harrison's) widow. The facts as agreed upon were substantially as follows: John Harrison died in said county in 1870, leaving a last will and testament, of which the following is a copy: . . . "I give to my wife, Celestia E. Harrison, one year's allowance, $100 in specie, and (a considerable amount and variety of personal effects). The three beds and the stock not disposed of, to be sold at my death, and the household and kitchen furniture, still and fixtures to remain in her possession during her natural life. Whatever she may bring here, I consider hers.
"My desire is that all the land on the south side of her dower, including the tract on which N.C. Harrison formerly lived, be sold or divided between N.C. Harrison's children. After the death of my wife, the dower to be divided equally between the children of my deceased son, John F. Harrison, viz., Bettie and Mary.
"I have already given to my daughter, Mary Drake, one note (368) for $500 and one gold watch, to be handed to her after my death. My will is that all the bonds and money on hand, if any, and the proceeds of the sale be equally divided between my grandchildren, who have already been mentioned in this will."
After the death of the testator, his window dissented from the will, had her year's support allotted, and in 1873 she married again, and died in 1874, leaving a last will and testament, which was admitted to probate, and the defendant Dortch, named as her executor, duly qualified as such.
Before the marriage of the plaintiff's testator with said Celestia E., he made advancements to his children (the said John F. and N.C. Harrison and Mrs. Mary Drake) of slaves and other personal property of the value of several thousand dollars, they being his only children by a former marriage. It was insisted by the defendant executor that said *270 advancements should be accounted for in ascertaining the share of his testatrix in the estate of her first husband. It was insisted by the other defendants that the defendant executor was only entitled to one-fourth of the personal property, and that the other threefourths should be divided between the defendants, who are grandchildren of the plaintiff's testator.
It was then agreed that if the court should be of opinion with the defendant executor, all the money in the hands of the plaintiff should be paid over to said Dortch; for that the same is not equal to the value of advancements made to each of said children; and if the court should be of opinion that the defendants are not required to account for the advancements, then it was agreed that one-fourth should be paid to said Dortch, and three-fourths divided equally between the defendants, who are grandchildren of the plaintiff's testator.
(369) Thereupon his Honor decided that said Dortch was entitled to one-fourth of said personal estate, and that the grandchildren — residuary legatees in said will — were not chargeable with advancements made to their parents, nor were the advancements to be taken into hotchpot
for the benefit of the widow. And as Mrs. Drake was a legatee, she would have to account for any advancements she may have received. From this ruling the defendant executor appealed.
Bat. Rev., ch. 117, sec. 7, provides that where she dissents from her husband's will, "the widow shall have the same rights and estates in the real and personal property of her husband as if he had died intestate." The Rev. Code, ch. 118, sec. 12, provided that "Where a widow shall dissent from her husband's will, she shall take as fully and such part of his personal estate as she would take in case of his intestacy." We can see no substantial difference between the two statutes, as was attempted to be shown in the argument, and therefore we must give the same construction to the former as to the latter has invariably received in the decisions of this Court. Worth v. McNeil,
His Honor in the court below held that Mrs. Drake, one of the children of the testator, being a legatee under the will, must account for advancements made to her, but that the other two children, not being legatees, the advancements made to them were not to be estimated in favor of the widow as against the grandchildren who claimed under the will. No such distinction can be sustained. In ascertaining the widow's share who dissents, there is no will to her, but the husband dies intestate; and of course all his personal estate, whether consisting of advancements theretofore made to children, or legacies to grandchildren or strangers, is to be brought together, and her share is to be taken out of it pursuant to the statute of distributions. Bat. Rev., ch. 45, sec. 103. His Honor was probably misled by what the Court said in Worth v. McNeil, supra, and by not adverting to the distinction there made between the case of the widow claiming against the will as in an intestacy, where all the personal property must be brought in hotchpot for her benefit, and the case of a division among the children claiming under a will, where advancements are not to be accounted for as between themselves. In this case all the advancements are to be accounted for and as of time when made, and the widow or her personal representative is entitled to a child's part, as in case of an intestacy.
It may be a hardship upon the children and legatees, as the advancements were made in slaves, which have been emancipated by the results of the war; but, then, the law operates by fixed principles, and cannot bend to cases of individual and exceptional hardship.
There is error. Judgment reversed, and judgment here according to the agreement in the case stated.
PER CURIAM. Reversed.
Cited: University v. Borden,
(371)