Edgerton v. Perkins, 200 N.C. 650 (1931)

April 22, 1931 · Supreme Court of North Carolina

200 N.C. 650

W. H. EDGERTON, Administrator of Estate of N. S. PERKINS, v. K. D. PERKINS.

(Filed 22 April, 1931.)

1. Evidence I b — Bank ledger sheet identified as original and made in ordinary course of business held admissible in evidence.

In an action by the administrator of the deceased father against the son for the accounting by the latter of an advancement alleged to have been made, a bank ledger sheet identified as the original and testified by the cashier as to a relevant entry made in the ordinary course of business of the bank and produced from the bank files at the trial, is competent.

2. Wills F c — Definition of advancement.

An advancement by a father to his son is a gift in prwsenti or provision made by the father on behalf of his son for the purpose of advancing him in life and enabling him to anticipate his inheritance to that extent.

3. Appeal and Error E li — Supreme Coui*t will interprete record in light of theory of trial in lower court.

Where neither party makes objection to the issue submitted, the Supreme Court on appeal will interpret the record in the light of the theory prevailing in the trial court.

Civil action-, before Johnson, Special Judge, at August Term, 1930, of WaYNE.

Tbe defendant is tbe son of N. S. Perkins, deceased, and tbe plaintiff, administrator of said deceased, instituted tbis action for an accounting, alleging tbat tbe defendant bad received $10,000 proceeds of liberty bonds belonging to plaintiff’s intestate, and tbat said proceeds constituted an advancement to tbe defendant from tbe estate of bis father. Tbe defendant filed an answer admitting tbat N. S. Perkins was tbe owner of liberty bonds, but denying tbat be was indebted to tbe estate of bis father in any amount whatsoever.

Tbe evidence tended to show tbat on 20 November, 1919, tbe defendant, K. D. Perkins, deposited with tbe cashier of tbe Wayne National Bank $10,000 worth of liberty loan bonds to be registered in tbe name of N. S. Pea-kins. In November, 1928, tbe bonds were sold and tbe proceeds credited in tbe bank to tbe account of defendant, K. D. Perkins. Tbe proceeds of sale amounted to $8,625. Tbe ledger sheet of tbe bank was produced and identified by tbe cashier and vice-president, and tbis document showed an entry of $8,625 to tbe account of defendant. There was other evidence tending to show tbat tbe defendant in an examination before tbe clerk disclosed tbat be bad not repaid to bis father any money after tbe time of tbe deposit.

Tbe defendant did not testify in bis own behalf, and tbe case was submitted to tbe jury upon the following issue:

“Did tbe plaintiff’s intestate, N. S. Perkins, make tbe defendant an advancement in tbe sum of $8,625 as alleged in tbe complaint?”

Tbe jury answered the'issue “Yes.”

Whereupon, judgment was entered upon tbe verdict decreeing tbat tbe defendant should account for said sum with interest thereon in determining tbe portion of bis share of bis father’s estate.

From judgment so rendered tbe defendant appealed.

Kenneth G. RoyaJl, D. U. Bland, N. W. Outlaw and Andrew G. McIntosh for plaintiff.

J. Faison Thomson for defendant.

BeogdeN, J.

Tbe exception to tbe introduction of tbe ledger sheet of tbe bank cannot be sustained. Tbe document was identified as tbe original ledger leaf, and that it bad been made in tbe ordinary course of business in tbe bank and was produced at tbe trial from tbe files of tbe bank by tbe cashier and vice-president thereof. Peebles v. Idol, 198 N. C., 56. “An advancement may be defined as a gift in prcesenti or provision made by a parent on behalf of a child for tbe purpose of advancing said child in life, and thus to enable him to anticipate bis inheritance to tbe extent of such advancement.” Paschal v. Paschal, 197 N. C., 40; Nobles v. Davenport, 183 N. C., 207.

The charge to tbe jury correctly interpreted and applied tbe principles of law established by tbe decisions. Moreover, there was no objection to tbe issue, and thus both parties consented to tbe trial of tbe cause upon tbe theory of an advancement, and hence this Court will interpret tbe record in tbe light of tbe theory prevailing in tbe trial court. Shipp v. Stage Lines, 192 N. C., 475; In re Will of Efird, 195 N. C., 76.

No error.