6 N.C. 150 | N.C. | 1812
The decision of the question in this case (151) depends entirely upon the construction of the several acts of Assembly relative to the estates of deceased persons, and it will be necessary to review those acts. By the act of 1766, ch. 3, the personal estate of an intestate is directed to be distributed as follows: "one-third part to the wife of the intestate, and all the rest in equal portions to and among the children of such person dying intestate, and such persons as legally represent such children, in case any of the children be then dead, other than such child or children (not being heir at law) who shall have any estate by settlement of the intestate, or shall be advanced by the intestate in his lifetime, by portion or portions equal to the share which shall by such distribution be *120 allotted to the other children to whom such distribution is to be made. And in case any child (other than the heir at law) who shall have any estate by settlement from the intestate, or shall be advanced by the said intestate in his lifetime, by portion not equal to the share which shall be due to the other children by such distribution aforesaid, then so much of the surplus of the estate of such intestate to be distributed to such child or children as shall have any lands by settlement from the intestate or were advanced in the lifetime of the intestate as shall make the estate of all the said children to be equal as near as can be estimated; but the heir at law, notwithstanding any land that he shall have by descent or otherwise from the intestate, is to have an equal part in the distribution with the rest of the children, without any consideration of the value of the land which he hath by descent or otherwise from the intestate." This being the first act passed on the subject, and the only one which seems to blend the real and personal estates together (with the exception of the heir at law), it is necessary to inquire, (1) whether the subsequent acts directing the distribution of personal and the descent of real estates (152) have not repealed all the provisions of this act, and (2) whether, if they have not, all the children being by subsequent acts entitled to an equal share of the land, do not fall within the exception of the act of 1766, being all heirs, and entitled in equal portions to the land to which the eldest son succeeded previous to Laws 1784, ch. 22.
By this last mentioned act the land is made to descend to all the sons equally, and if there be no sons, to all the daughters, to be divided among them equally, share and share alike, with a proviso, that if any child shall have lands settled on him or her in the lifetime of the parent, then he or she shall have only as much land as will make his or her share equal. The eighth clause of the act provides that in case a widow shall dissent from her husband's will, she shall be entitled to one-third part of the land by way of dower during life; and that if her husband die leaving no child, or not more than two, she shall be entitled to one-third part of the personal estate; but if more than two children, she shall be entitled to a child's part only. It is to be remarked that this act makes special provision for the division of the real estate, and directs how a child advanced in the lifetime of the parent in lands shall be bound to bring the land into hotchpot before he shall be entitled to any share of the land descended. Now, suppose in 1785 a husband died intestate, leaving two sons and two daughters, and one of his sons had been advanced in the lifetime of the father with a *121 portion of land not equal to a full share. Immediately on the death of the father the sons would be entitled to have the lands divided and a share in severalty allotted to each; but the daughters and sons could have no claim for distribution of the personal estate for two years after the death of the father. The son advanced prays to have a division of the land, his brothers admit that he is entitled to some additional quantity, but say he has been advanced, and is entitled only to so much as, when added to his advancement, will give him a full (153) share. He must necessarily admit the fact, and content himself with this additional quantity. The lands are divided accordingly, the report of the commissioners returned to court, recorded and registered. Each son has then an estate in severalty, and such as cannot be changed, the division and return operating in the nature of a conveyance. Two years afterwards the same son petitions for his share of the personal estate, and the daughters say he has been advanced in land, during the life of the father, and under the act of 1766 he must bring the value of this land into hotchpot. The son answers that he has already brought them in with his brothers in the division of the real estate under the act of 1784, as he was bound to do by the express provisions of that act. This answer would not avail him, if the act of 1766 be in force, for the daughters' portions are not increased or diminished by the division among the sons; and the consequence is that the son would have to account twice for his advancement. What rule of justice or equity would compel the son advanced to bring his land into account in the division of the personalty, after the passage of the act of 1784? He has not a cent in value of the real estate more than his brother who has not been advanced. They are on an equal footing, and yet, according to the doctrine contended for, the brother advanced must bring his advancement into account with the sisters, while the brother who has not been advanced, but who has an estate equally valuable by descent, shall be exempt from the claim of the sisters. The act of 1784 must be considered as repealing the act of 1766, so far as respects lands by advancement; the Legislature in 1766 viewing the real and personal estates as one joint fund, and in 1784 viewing them as separate and distinct funds, and pointing out the mode of division in each.
Let us now examine the subsequent acts, and see how (154) far they support or contradict this construction. In 1792 the Legislature declared that "where any person shall die intestate, who had in his or her lifetime given to or put in possession of any of his or her children any personal property, of *122 what nature or kind soever, such child or children possessed as aforesaid shall cause to be given to the administrator or manager of such estate an inventory on oath, setting forth therein the particulars by him or her received of the intestate in his or her lifetime." The third clause of the act provides that "if he or she refuse to give an inventory as aforesaid, he or she shall be presumed to have received a full share." This act confirms the construction given to the act of 1784. The inventory required to be given respects the personal property only; not a word being used having reference to any advancement of land. When we consider that the evident design of this act was to enable the executor or administrator to make an equal distribution of the estate, by being furnished with a list of the articles received by each child, it would seem strange, if the Legislature did not consider the act of 1766 to be repealed as to advancement of land, that they should not have required an inventory of the real estate also to be returned. The one is as necessary as the other, to enable the administrator to make distribution. But if the act of 1784 be considered as repealing the act of 1766, on this point, such a provision was wholly unnecessary in the act of 1792, and very properly omitted. But it is said that advancements of land being by deed, the administrator could easily ascertain by the register's books what lands the father had given to a child, that no such evidence could be procured with regard to the personal property, and therefore the Legislature only required the inventory as to the personal. This reason is not satisfactory. The object of the act was to relieve the administrator from the trouble of searching after (155) evidence, by compelling the person who best knew the fact to disclose it, or be precluded from a share. And if this was the object, why not extend it to the land? Why put the administrator to the trouble and expense of searching the records, if the same plain, easy mode could be adopted with regard to the lands which was provided as to the personal property? As the Legislature have not prescribed such a mode, it is conclusive that they never intended advancements of land to be taken into account in the distribution of the personal property. But it is not correct to say that in any instance the administrator could discover from the records what lands had been given by way of advancement. It is common for a father who is about to advance his son, to purchase lands for him and to have the deeds made by the vendor directly to him. In all such cases the administrator could not be informed by the deeds that the lands were given by the father. He would be subjected to the same trouble in proving this fact that he was exposed to as *123 to advancements of personal property before the act of 1792. It cannot be presumed that the Legislature, intending to relieve him from this trouble, would take into view only the personal estate, and leave the real unprovided for.
The act of 1791, providing for a widow who dissents from her husband's will, views the real and personal estates as separate and distinct funds. By the act of 1784 the widow, in case of intestacy, is entitled to a child's part, and if one of the children could compel a brother or sister to bring lands, advanced to him or her in the lifetime of the father, into account in the division of the personal property, so can the mother; for the act of 1791 places her, after her dissent from her husband's will, in the same situation as if the husband had died intestate. The fourth clause of this act directs the jury to inquire whether, by the will, the widow is as conveniently and comfortably provided for as if her dower were allotted to her according to the act of 1784; and if so, she is precluded from any (156) further claim upon her husband's land. The fifth clause directs how her share in the personal property is to be laid off: that the same jury shall inquire whether the legacy or legacies given to her by the will is or are equal in value to the distributive share she would take under the act of 1784; and if equal, she shall be content, but if not, the deficiency to be assessed, and judgment granted for the same against the administrator, etc. What was her share under the act of 1784? One-third of the real and a child's part of the personal estate. So that this act evidently precludes the widow from any share of the land advanced, and yet gives her precisely such share as a child would get. Hence it must follow that the child shall not take any share of the advanced lands in the division of the personal property. The Legislature, in the act of 1791, seems desirous to express themselves in language which cannot be misconstrued; they do not say that the widow shall have such deficiency made up, so as to give her a full share of the husband's estate, but expressly refer to the act of 1784 to ascertain what shall be her share, the very act which compelled the advancement in land to be brought into account in the division of the real estate, and the very act which we think repealed that provision in the act of 1776. It is also worthy of remark that in 1766 there was no division of land to be made; the eldest son took the whole. But when, by the act of 1784, all the brothers took, there were persons between whom the land was to be divided; and there the Legislature direct the child advanced to bring such advancement into account in the division of the real estate; whereas, before that time, the advancement could be taken into account *124 only in the division of the personal estate. If the act of 1791 refers expressly to the act of 1784, to ascertain what shall be the share of the widow, and that act expressly gives her (157) one-third of the real and a child's part only of the personal estate, it must necessarily follow that a child can have no more than a share of the personal property, excluding altogether advancements in land from the personal property.
In the next place, we are of opinion that if the act of 1784 should not be construed as repealing the act of 1776, so far as respects advancements in land, yet that the land now in question is not liable to be brought into account. By the act of 1766 the heir at law is expressly excepted. The act of 1784 makes all the brothers heirs; not, indeed, by reducing the situation of the eldest son to a level with the younger ones, but by raising the latter to the level of the former. And as the eldest son, by the act of 1766, is exempted from the operation of the clause respecting advancements, so are all the sons by the act of 1784. By the act of 1795 the daughters are raised to the level of the sons, and entitled to inherit equally with them. So that, since that act, all the children compose the same heir which the eldest son did under the act of 1776, and, consequently, are all within the exception. It has been said that the heir at law means the heir at common law, and that since the acts of 1784 and 1795 there is no such person known to our law. The term, "heir at law," means the person or persons on whom lands descend according to the law of the State, or Kingdom, in which they are situate, and in our law means allthe children of a deceased person. On this ground, also, we are of opinion that the land advanced ought not to be taken into account in a division of the personal property.
