42 N.C. 159 | N.C. | 1850
Upon the pleadings the case is this: Aaron Headen died intestate in 1848, leaving a widow and six children surviving him, namely, John, Susan, Rachel, Temperance, Elizabeth and Dolly. He had three other children who died in his lifetime, namely, Sarah, Mary and Rebecca. Sarah married one Brooks, and had five children, viz.: Elizabeth, Sarah, Jane, Thomas, and Susan. Mary also married and had one daughter, Elizabeth Fooshee; and Rebecca married one Adams, and had three children, viz.: Agnes, James, and John; and all those grandchildren survived their grandfather.
The intestate in his lifetime gave and conveyed to his son, John, two slaves, and also a tract of land in fee. The slaves were of less value than one-tenth of his personal estate; but they and the land together considerably exceeded one-ninth part of his whole estate, real and personal. He also made sundry gifts of slaves by deeds to some of his other children, as follows: To Susan, two; to Rachel, six; to Temperance, four; to Elizabeth, three; to Dolly, three; to Sarah Brooks, one; and to Rebecca Adams, two. He put into the possession of his daughter, Mary, a female slave, who had two children, and upon the death of Mary, her only child, Elizabeth Fooshee, took them. The intestate afterwards made an oral gift of another slave to Elizabeth Fooshee, and in the lifetime of the intestate she sold that slave for $700; and the intestate likewise conveyed to her by deed of gift the woman and two children, which had been in the possession of her mother, Mary. *117 Besides the slave conveyed to his daughter, Sarah Brooks, the (161) intestate put into her possession another female slave, who had issue four children in the lifetime of said Sarah; and after her death the intestate by deeds of gift conveyed one of those slaves to each of her said five children for life, with remainder to his other children.
John, the son, administered on the intestate's estate; and, after discharging the debts and charges, he has a surplus in money and a considerable number of slaves for distribution. He filed this bill against the widow, the surviving children, and also the grandchildren, praying that the rights of the parties may be declared in several particulars mentioned, and the plaintiff made safe in the distribution of the personal estate under the direction of the Court. One of the points stated is, whether the slaves, which were conveyed to the respective grandchildren, and had been in the possession of their mothers, are to be brought into hotchpot as advancements, either to the grandchildren or the mothers. They are not. The grandchildren are not entitled to a distributive share in their own rights, but as representing the respective mothers. They are therefore bound to bring in the gifts to their parents, but not those to themselves. There was no effectual gift of the slaves to the mothers, according to the Act of 1806; but they were conveyed directly to the several grandchildren. The statute of distributions is restricted to gifts from a parent to a child, and does not include donations to grandchildren.
Other points are, as to the share of the widow; and what is the effect of the advancements to John, as between him and his sisters, and those representing them, and as between them and the widow. (162) It is settled, that under the words, "child's part," in the act of 1784, advancements to children are to be brought in for the benefit of the widow as well as that of other children. Davis v. Duke,
The Court, however, is of opinion, that the son's exclusion, so far as it arises from the advancement in land, is as between him and other children, or their representatives, only; and that the land is not to be brought in for the benefit of the widow. The act is in terms confined to children and their representatives; it being meant to establish an equality between them, and nothing more. In the next place, the provision for the widow out of the husband's real estate is secured in a different form; that is, as dower in one-third of that left by him or conveyed with intent to defeat her right of dower. Having made that *120 competent provision for her in the land, the law, next, gives her a child's part of the personal estate, as a distinct fund. The act of 1844 does not purport to give her more than a child's part in any case; and the law would be untrue to its policy if it were to enlarge the widow's share of the personalty, by estimating with it an advancement in land to a child and giving her in personalty a share of the aggregate in absolute property, as against all the children. There could have been no such intention; and the widow's share of the personalty is to be ascertained, just as it would be, if the act of 1844 had not been passed. Consequently, if a child be advanced in personalty to the value of a full share thereof, the advancement and that child are both to be thrown out, and the personalty on hand divided between the widow and the other children. But, as the advancement is personalty to the son, in this case, was of less than his share, or tenth part, of the personal estate, it is normally certain, that, but for the act of 1844, he would have brought it in, and have had his full share made up to him. As respects the widow, it (166) must be brought in for the purpose of giving her a child's part, or one-tenth of the whole personalty, including that advancement and such others in personalty as are not full advancements of that kind of property. That is necessarily so, in order to keep the widow to her child's part; for, unless the partial advancement to the son in slaves be brought in, the widow would have a ninth part of the personalty, which was left by the husband or advanced to the other children, while there are in fact nine children, and the one excluded did not receive an aliquot part of the personalty, reckoning by the whole number of children and the widow; whereas, at most, she cannot have more than a child's part or one-tenth of the whole personal estate, including advancements in it. The widow's share is, therefore, to be first ascertained, upon the basis of a division of the personalty by itself (including partial advancements) between her and all the children, under the act of 1784; and after taking out her share, the remaining fund is devisible among the other eight children, or such of them as were not fully advanced, and their representatives.
PER CURIAM. Declared accordingly.
Cited: Daves v. Haywood,
(167)