75 S.E. 1010 | N.C. | 1912
The facts are sufficiently stated in the opinion of the Court by Mr. JUSTICE WALKER.
This case was before us at a former term and is reported in
The matter as now presented to us seems to be largely, if not altogether, a question of fact. The action was brought by the plaintiff, Fannie H. Thompson, heir at law and distributee of her deceased father, J. R. Smith, against the defendant, Marcellus Smith and A. M. Thompson, his administrators, for an accounting, and the controversy related principally to the question whether certain lands which the father divided among his children were to be regarded as gifts or advancements, and if the latter, the prayer is to have them account for the value thereof, and for the value of the use and occupation of the lands before the title thereto was completely vested by conveyances.
An advancement is said to be an irrevocable gift in presenti of money or of property, real or personal, to a child by a parent, to enable the donee to anticipate his inheritance or succession to the extent of the gift. 14 Cyc., 162. It is thus defined by Chief Justice Pearson in Hollisterv. Attmore,
If the lands so transferred by J. R. Smith to his children are not advancements, it is conceded that they were absolute gifts, and the donees are not, therefore, accountable for their value or the value of their use.
The doctrine of advancements is based on the idea that parents are presumed to intend, in the absence of a will, an equality of division among their children; hence a gift of property or money is prima facie an advancement, that is, property transferred or money paid in anticipation of a distribution of his estate; but the presumption thus raised may surely be rebutted, and parol evidence is competent for that purpose, even though there is a recital of the consideration in the deed or other instrument of conveyance. Griffin, ex parte,
Making proper allowance for the burden of proof, as fixed by the presumption arising out of the nature or circumstances of the gift, the question of whether there was a clear gift, a loan, or an advancement, is to be settled by ascertaining what was the intention of the parent. Thornton on Gifts and Advancements, 591; Melvin v. Bullard,
There is an exception as to the payment of a note for $350, given by defendant Marcellus Smith to his father, J. R. Smith. The referee and *211 judge found that this note had been paid by the maker to his father, the plaintiff having contended and offered much and very strong and persuasive testimony to show that it had not been. The referee and judge might very well have found as a fact that the payments, though alleged by Marcellus Smith to have been made by him, were not in truth so made, and such finding would have been fully supported by the evidence, but this exception comes within the same rule we have just stated and applied to the other branch of the case, and the finding must stand, as we will not review it. We concur with the referee and judge in their finding of fact, that the transfers of land were clear gifts, for the purpose of equality in the division of his real estate by the donor among his children, and not advancements, and we can only say, as to the note, that plaintiff was merely unfortunate in not being able to convince the learned judge and referee that it had not been paid. In both instances, though, the plaintiff must abide by their decision as to the facts, and this overrules both exceptions.
There is no error in the case, and we, therefore, affirm the judgment.
Affirmed.
Cited: McCullers v. Cheatham,
(260)