Davis v. Duke, 1 N.C. 213, 1 Tay. 213 (1801)

Dec. 1801 · North Carolina Superior Court

1 N.C. 213, 1 Tay. 213

Jonathan Davis & uxor, and Mary Duke, versus Green Duke adm. of William Duke.

Advancements made by an intestate in his life time, to his children, are to be brought into a distribution for the benefit of the widow.

THIS was a petition filed by the widow and next of kin, to obtain distribution of the intestate’s, William Duke's estate. The County Court had referred the accounts to Commissioners, who reported that the petitioner, Mary, the widow of William Duke, was entitled to an equal share with the children, of the intestate’s personal estate, including the advancements made by the intestate in his life-time, to his children. Part of the estate however, was disposed of by a nuncupative will, which was not brought into the account. The exception to the report was, that the widow is not by law entitled to a share in the advancements to the children.

Baker argued in support of the exception,

that it was plain from the words of the act of distribution, that a child advanced by the intestate in his life-time, was to have an equal share with the other children, and that what he had received was not to be brought in, for the benefit of the widow. To her was allotted, by the act of 1766, one third of the surplus, and in directing the division amongst the children, she is not brought into view. Accordingly, it has been always held, the widows was not entitled under that act. That although, by the act of 1784, the provision for the widow was differently modified, yet no allowance was made her, with respect to a child’s advancement. If this had been intended by the legislature, they would have expressed it, in some of the laws by which this subject had so frequently been brought before them.

Haywood, for the petitioner,

admitted that the construction contended for, on the other side, was the true and proper one, under the two acts of 1715 & 1766 ; but he argued, that from the scope and design of the act of 1784, as well as the phraseology it uses, it may be clearly inferred that the law is now different. The first acts referred to, provide that the widow should have “one third part of the “ surplus;” this was allotted to her, without any regard to the number of children, or any view to make her share equal to theirs. But when the legislature, by the act of 1784, aimed to make an equality between her and the children, instead of “surplus,” they say “personal estate;" and wherever there are more than two children, the widow shares equally, with all of them, she being entitled to a “child’s part.” It is also proper to be noticed, that the act of 1792, cap. 7. sec. 2, declares the intention of the former law to have been, to make the distribution of intestates' estates equal, without confining the principle to the children. From this view of the subject, it will appear that the report is framed with propriety.

By

the Court.^*

The act of 1766, appointing a method of distributing intestates' estates, was intended to produce the most perfect equality amongst the children, with respect to the distribution of their intestate father’s estate. With this view, the material parts of the statutes of 22 and 23 Car. 2, and 1 Jac. 2, are incorporated into it: whatever construction, therefore, is correct in relation to those statutes, must be so with respect to this act, which has taken them for its basis, and which has even literally followed such of their provisions as affect this case. The law declares that no child who hath received an advancement (except the heir at law) of an equal value with a distributive share, shall have any part of the surplus with their brothers or filters ; but if the estates so given them are not equal to the other shares, the children so advanced shall have so much as will make them equal. This act entitled the widow to a fixed proportion of the estate, not liable to be varied by the number of children, though it was increased if there were none. To make the children’s shares equal with each other, was the design of the law : but to make the widow equal with the children, though it might happen in some cases, formed no part of the policy of the act. It has therefore been properly decided, that a widow can derive no benefit from an advancement, which is brought into hotchpot. But the act of 1784 extends to the widow that principle of equality, which was before confined to the children, and in all cases where there are two or more, she is equally entitled to the personalty with them. This is evident, from the law using the expression “a child’s part,” which, ex vi termini, imports as large a share, as any child has. Now if an advancement were brought in for the benefit of the children, to the exclusion of the widow, this act, made to improve her condition, would in many instances have a contrary effect ; because instead of the third, to which formerly she had a certain claim, her proportion must depend upon the number of claimants. The exception therefore ought not to prevail.

Report confirmed.

* Hall, J. gave no opinion, having been of counsel in the case.