Hanner v. . Winburn

42 N.C. 142 | N.C. | 1850

This was a bill, in substance praying an account of the personal estate of Nathan Armfield, deceased, of which the plaintiffs claim two-thirds, as the assignee of two of the next of kin of the said Nathan, who were each entitled to one-third, against the defendant, Walter, who was the administrator de bonis non of the said Nathan, and the defendants, Moses Swain, and Betsey, his wife, who were entitled to the remaining distributive share. Answers were filed and depositions were taken. From these it appeared that the father, Nathan Armfield, (143) had put in possession of one of his sons, John, the assignor of one of the plaintiffs, a negro slave, not as an advancement but as a loan — that the said slave was very valuable and remained several years with John, without any claim on the part of the father for hire, and that he died in John's possession in the lifetime of the father. The Clerk, to whom it was referred to state the administration account, charged John, as an advancement, either to the value of the slave himself or his hire, while in John's possession, and submitted to the Court for which amount he should be charged. To this charge, in either aspect, the assignee of the said John Armfield excepted. It further appeared that the said Nathan had sold a tract of land to William Hanner, the husband of one of the said Nathan's daughters, and now a distributee, for the price of which he has taken his bonds, and that afterwards he had surrendered one of these bonds, amounting to five hundred dollars, to the said William Hanner, and the Clerk in his report charged the said William's share with the said sum of five hundred dollars as an advancement. To this charge an exception was also filed. The Clerk also in his report calculated interest on the value of the several advancements from the time of the intestate's death. To this there was an exception. The case is before us upon exceptions to the Master's report.

The first exception is, that the commissioner charges John Armfield with the price of the boy Walker, at $1,000 as an advancement, etc., and the evidence does not support the charge. The intestate reserved the title and declared, if he should survive his son John, the boy was his, and the boy died before the intestate, and before John Armfield.

The Commissioner's report, as to Walker, is, "that the advances are as follows: To John Armfield, negro Walker, or, if (144) not, then his hires for ten or twelve years, either of which is valued at $1,000." In other words, the Commissioner refers to the Court to say, as a matter of law, whether Walker was an advancement or not, and if the Court should be of opinion that he was not, "then that his hires were, and that they were worth $1,000." We are of opinion, Walker was not an advancement. The proofs show, that he was lent to John Armfield and not given. Upon one occasion when the latter was offered, in Alabama, a very high price for the negro, he wrote to his father, the intestate, to know if he might sell him, and whether he would take that price; the intestate replied, he must not sell him, he would not take any price. This, we think, is conclusive upon the question of an advancement. Cowan v. Tucker,27 N.C. 78. But we are of opinion, that the hires of Walker, while in the possession of the son, were an advancement, for which his estate must account. The proofs show, that John Armfield was engaged in negro trading, and when about to start for the Southern market, Walker was put into his possession by his father to assist him in his business; and though he continued in possession of him ten or twelve years, no claim was made upon him for his hires by the intestate. Why was this? Because the intestate was willing that John should have them — in effect, he gave them to him, and John's estate was increased by them, to their full amount. If he had not had Walker, he would have been obliged to hire either another negro, or a white man, to have performed the service rendered by him, whereby his estate would have been so far reduced. Baron Comyn, 1 Digest, 486; title, Administration, letter H., speaking of advancement, says, "So the heir at law, if he be advanced out (145) of the personal estate, shall account, though his advancement be only the use of furniture for his life; for it is an advancementpro tanto." For this position he cites Fitzgibbon, section 285. The hires of Walker were an advancement. As to the estimate put by the Commissioner upon the hires, we have no proof that it was too high. John Armfield had his services for ten or twelve years, and it is proved that he was a very valuable slave. This exception is sustained, so far as relates to the advancement of Walker, and the report confirmed as to the hires. The second exception is sustained, so far as interest has been calculated by the Commissioner, on the advancements of John Armfield and Polly Hanner, from the death of the intestate. An executor and administrator, from the time he administers, has two years to collect in the assets and settle the estate: no interest during that time is to be paid by him. This exception is sustained and the Commissioner will correct his report in this particular, in conformity with this opinion, upon any of the advancements. The third exception is overruled. It is proved by the testimony of Mr. Gorrell and Shannon Wiley, that William Hanner, the husband of Mrs. Polly Hanner, had purchased from Nathan Armfield, the intestate, a tract of land at the price of $1,500, which was secured by two bonds executed by the said Hanner, one for $1,000 and the other for $500. The latter witness states, that, in conversation with Nathan Armfield, the latter states that Hanner, had a hard bargain in the land, and he intended to give him up the latter bond, and the former witness, that it was surrendered up by the intestate to Hanner in his presence. The intestate Armfield, then, held a bond upon William Hanner for $500, which he surrendered up to him, that is, gave him. This was a gift by Armfield to his son-in-law of $500, and is an advancement, and is so returned by Mrs. Hanner, in her list as administratrix.

PER CURIAM. Decree accordingly.

Cited: Sanders v. Jones, 43 N.C. 248; Melvin v. Bullard, 82 N.C. 39;Tart v. Tart, 154 N.C. 506, 507.

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