70 S.E. 929 | N.C. | 1911
Proceedings heard on exceptions to report of referee. These proceedings were originally instituted before the clerk of the Superior Court by some of the children and grandchildren, heirs at law and distributees of Whitfield Tart, Sr., deceased, against others of the children of said Whitfield Tart, to bring about a division of certain lands of the deceased by sale of same. In the complaint and answer allegations were made of advancements to the different children in lands and money. Meanwhile the land was sold by order of court and the proceeds held, subject to an accounting, and orders made in the cause. The administrator of the estate is also a party, and it appears that he had on hand, for distribution, personal estate to the amount of several thousand dollars. The heirs at law and distributees, parties plaintiff and (504) defendant, are children by a former wife. The last wife and widow having died intestate since her husband, her administrator has been duly qualified and made a party of record. On issues found, the cause was transferred to the civil issue docket and, at August Term, 1910, the entire matter was referred by consent. Hearing was had and report was made to October Term, 1910, when and where same was heard on exceptions as stated. It appeared from the report, among other things, that Whitfield Tart, Sr., had died intestate on 5 April, 1908, leaving him surviving his widow, since deceased, and the plaintiffs and defendants, his children by a former wife, and the children of some who had died, and owning the land, which had been sold by order of court in this cause, and several thousand dollars of personal property. That said Whitfield Tart had, many years back — twenty and upward — made advancements to some of his sons defendant by conveying to them tracts of land which they had owned and occupied since; had made also some advancements in money to his said sons and others of his children. That on 11 October, 1906, Whitfield Tart, Sr., had conveyed to his son, Whitfield Tart, Jr., and to his children, five then born and one in ventre sa mere, the home tract of land, reserving a life estate for himself and wife for the portion on the east side of the road, where they lived, and that the interest in this land to said Whitfield, Jr., was an advancement to him by his father. It further appeared that Whitfield, Sr., in 1885, had put said Whitfield, Jr., in control and possession of 75 acres of this tract, the portion lying on *399
west side of the road, and that said son had enjoyed and possessed that portion for his own use and benefit down to the time of making of the deed referred to. The referee stated the account by charging the children with the real estate and money valuation of the advancements and interest thereon from time same were received to the death of the intestate, except in the accounting with Whitfield, Jr. This last was charged with one-seventh value of the interest on the home place, conveyed to him by the deed of 1906, and interest thereon to the death of the intestate. He was also charged with the interest, in (505) lieu of rent, on the unimproved value of the 75 acres, occupied and possessed by Whitfield from 1885 to the date of the deed. Exceptions were filed to different items of charge by plaintiffs and defendants. The court overruled the exceptions by defendants, sustained some and overruled others of the exceptions of plaintiffs, and entered judgment in accordance with his rulings on the report and exceptions thereto. Both plaintiffs and defendants, having duly excepted, appealed to this Court.
DEFENDANTS' APPEAL.
An advancement has been properly defined as a "free and irrevocable gift by a parent, in his lifetime, to his child, or person standing in place of such child, on account of such child or person's share in the donor's estate, which he will receive under the statute of descent or distribution if the parent or donor die intestate." Thornton on Gifts and Advancements, p. 510. And in note 2 of this publication (p. 510) is cited a definition from
The case of Whitfield Tart, Jr., is presented on facts differing, in some respects, from the others. The land was conveyed to him and his children and the advancement thereby perfected on 11 October, 1906. Under our decisions the effect of this deed was to convey to Whitfield Tart, Jr., one undivided seventh of the land, as tenant in common with his children. Lewis v. Stancil, ante, 326; King v. Stokes,
There is no special facts or circumstances which require that the valuation of this home place at the time of the conveyance should be disturbed or modified. The remaining portions of the judgment of the court, sustaining plaintiff's exceptions No. 3 and No. 6 and Nos. 12 and 13 and all other portions of the judgment as it affects the defendants, are affirmed, except that, for the reasons stated, no interest will be allowed on these advancements. On defendant's appeal the report should be modified to accord with the principles and rulings made in this opinion, and it is so ordered.
Modified.
PLAINTIFFS' APPEAL.
Plaintiffs, other than the administrator of Nancy Tart, the deceased widow of Whitfield Tart, Sr., except to the judgment of the court which directs that the share of the deceased widow in the personal property of the intestate shall be paid to her administrator. This ruling is undoubtedly correct and should be affirmed. Neill v. Wilson, (508)
Modified.
Cited: Thompson v. Smith,
(509)