Parker v. Eason, 213 N.C. 115 (1938)

March 2, 1938 · Supreme Court of North Carolina

213 N.C. 115

DORIS PARKER v. J. B. EASON, Executor of Estate of JOS. D. EASON, Deceased; J. B. EASON, Trustee Under the Will of JOS. D. EASON, Deceased, for DORIS PARKER; and J. B. EASON, Individually.

(Filed 2 March, 1938.)

1. Descent and Distribution § 12—

■ An advancement is a gift in prcesenti made by a parent on behalf of a child to advance the child in life, and thus enable him to anticipate his. inheritance to the extent of the advancement. O. S., 1654 (2).

2. Same—

Advancements are restricted by statute, N. O. Code, 138, to gifts from a parent to a child, and ordinarily grandchildren may not be held accountable for gifts to themselves, but must account for gifts from their grandparent to their parent before they can inherit from their grandparent.

3. Same: Wills § 34 — Will held to require accounting for advancements in same manner as though testator died intestate.

The will in suit directed that loans and advancements by testator to his children should be accounted for and taken into consideration in dividing the property and the amount finally received by those to whom advancements were made to be reduced proportionately, and by subsequent item divided the estate into twelve parts, one of which was to be held in trust for the children of a deceased daughter. Plaintiff is one of the children of the deceased daughter. Held,: The intent of the testator as gathered from the will requires advancements to be accounted for before dividing the property, in the same manner as though he had died intestate, and plaintiff must account for the advancements made to her mother, in proportion with her sisters, before receiving her share of the corpus of the trust fund.

Appeal by plaintiff from Williams, J., at October Term, 1937, of WilsoN. Affirmed.

“Tbe above entitled matter came on to be beard before bis Honor, Clawson L. Williams, Judge presiding, and a jury. After tbe reading of tbe pleadings, tbe plaintiff admitted in open court tbat sbe bad received from tbe defendant on account of whatsoever sum was due ber under tbe will of ber grandfather, Jos. D. Eason, tbe sum of $345.39, as set out in tbe fourth paragraph of ber complaint, and tbat sbe was properly chargeable with tbe sum of $209.38 in addition thereto, which sum bad, by tbe defendant, been advanced to ber sister, Grace Parker, at tbe special request and instance of tbe plaintiff, with tbe direction and understanding tbat sbe, tbe plaintiff, should be charged therewith, tbe defendant having heretofore in bis account filed with tbe clerk of tbe Superior Court, charged tbe plaintiff with tbe two respective sums.

“Tbe following facts were admitted in open court, to wit: Jos. D. Eason, deceased, was tbe father of Sallie Eason Parker; tbe plaintiff Doris Parker, Grace Parker and Edith Parker are tbe children of Sallie Eason Parker. Sallie Eason Parker died prior to tbe death of ber father, Jos. D. Eason. Tbe plaintiff Doris Parker, Grace Parker, and Edith Parker are tbe persons mentioned in subsection ... of tbe fifth item of tbe last will and testament of Jos. D. Eason, deceased. In making settlement of tbe estate of Jos. D. Eason, deceased, tbe defendant, as executor, charged tbe plaintiff herein with one-tbird of certain indebtedness of Sallie Eason Parker to Jos. D. Eason, subject to certain credits, all of which is set out in tbe answer and in tbe report filed by tbe defendant herein as trustee- of tbe plaintiff and ber other sisters.

“Tbe plaintiff contended tbat under a proper construction of tbe will of ber grandfather, Jos. D. Eason, tbe defendant, as executor of Jos. D. Eason, should not have charged ber with one-tbird of tbe indebtedness of ber mother to tbe testator. Tbe defendant, on tbe other band, contended tbat under a proper construction of tbe will of Jos. D. Eason, be was required to charge tbe plaintiff with one-tbird of tbe indebtedness of her mother, bis daughter, to Jos. D. Eason.

“Tbe defendant introduced evidence tending to show tbat Sallie Eason Parker owed ber father, bis testator, tbe sums of money which be had charged against tbe plaintiff, and ber sisters in bis accounts. Tbe plaintiff stated, in open court, tbat she bad no evidence to offer to contradict tbe evidence offered by tbe defendant tending to show tbat Sallie Eason Parker did owe ber father, tbe defendant’s testator, tbe sums of money which be bad charged against tbe plaintiff and ber sisters.

“Tbe court being of tbe opinion tbat under a proper construction of tbe will of Jos. D. Eason it was tbe duty of tbe defendant to charge against tbe share of the plaintiff one-tbird of the net indebtedness of her mother, Sallie Eason Parker, to her father, Jos. D. Eason, the testator of defendant, as the defendant did in the settlement of the said estate, whereupon the plaintiff stated in open court that if the defendant had the right to charge the items, the correctness of the amount of the items was admitted and she waived her right to the submission of an issue to the jury, admitting that the items as charged were the correct amounts of the indebtedness of her mother, Sallie Eason Parker, to the estate of Jos. D. Eason.

“It is therefore, upon motion, ordered, decreed and adjudged that the plaintiff take nothing by this action; that the defendant go hence without day and recover his costs in this behalf expended.

ClawsoN L. Williams,

Judge Presiding.”

To the foregoing judgment the plaintiff excepted, assigned error, and appealed to the Supreme Court.

“Agreed Case on Appeal. This is a civil action commenced by plaintiff to recover of defendant, in his various capacities, certain moneys alleged to have been wrongfully withheld in a settlement made by the defendant as executor of the estate of Joseph D. Eason and as trustee for plaintiff under the will of Joseph D. Eason.

“Defendant answered the complaint and set up that he was due the plaintiff only the sum of $641.52, and that he had paid the sum into the hands of the clerk of the Superior Court of Wilson County for her use.

“The sole controversy between plaintiff and defendant resolved itself into a construction of the last will and testament of Joseph D. Eason. For the purposes of this record it is agreed that if plaintiff was correct in her contention that she was not chargeable with one-third of the indebtedness of her deceased parent to the estate of Joseph D. Eason, then the amount owing by defendant to her would be $1,381.61, and that if she be chargeable with one-third of said indebtedness, then the amount of $641.52 paid into the hands of the clerk of the Superior Court by defendant was the correct amount.”

The last will and testament of Joseph D. Eason was introduced in the evidence, and the material parts for a decision of thi§ controversy will be set forth in the opinion.

L. Bruce Gunter, Finch, Rand & Finch, and Troy T. Barnes for plaintiff.

D. M. Hill and Connor & Connor for defendants.

Clarkson, J.

The question for decision: Is plaintiff chargeable with one-third of the indebtedness of her deceased parent, Sallie Eason Parker, to the estate of her mother’s father, Joseph D. Eason? We think so. It is agreed between the litigants if plaintiff was chargeable with one-third of the indebtedness due by her mother to the estate of her father, Joseph D. Eason, the amount due her was $641.52, otherwise $1,381.61. In Paschal v. Paschal, 197 N. C., 40, citing authorities, it is said: “An advancement may be defined as a gift in prcesenli or provision made by a parent on behalf of a child for the purpose of advancing said child in life, and thus to enable him to anticipate his inheritance to the extent of such advancement. C. S., 1654, rule 2.”

Grandchildren are bound to bring in the advancements to their parents, but ordinarily not gifts to themselves. This rule is restricted by the statute to gifts from a parent to a child, N. C. Code (Michie), sec. 138. Headen v. Headen, 42 N. C., 159 (161).

If Joseph D. Eason had died intestate without a will, the plaintiff in this action, his granddaughter, before she could.inherit from her grandfather had to bring into hotchpot the advancements made to her mother. In the present case plaintiff takes under the will of her grandfather, and the will must be construed.

At the date of the execution of the will by Joseph D. Eason his wife and nine children were living and two were dead. The two dead each left children. The mother of plaintiff left three children. Under the will he gave to his wife the house and lot on which they resided and a small farm. He gave to two of his sons, J. L. Eason and J. D. Eason, Jr., certain life insurance policies.

“Fourth: During my life I have loaned and advanced certain sums of money to certain of my sons and daughters which I wish taken in consideration in a division of my property, and for that purpose I direct that all advances or loans so made by me to any of my sons and daughters be accounted for, with interest, the amount to be finally received by those to whom such advances or loans have been made to be reduced proportionately.

“Fifth: All the balance, remainder and residue of the property that I may own at the time of my death, and which I have not hereinbefore specifically disposed of, I hereby bequeath and devise unto my wife, sons and daughters, and grandsons and granddaughters in the manner following and in the proportion set opposite their respective names, to wit”:

Then he devises the balance into twelve parts:

“(A) K. T. Eason a one-twelfth interest thereof, etc. . . .

“(L) A one-twelfth interest thereof I give, bequeath, and devise unto J. B. Eason in and upon the following trust, to wit: In trust to have, hold, retain and safely keep to the use and benefit of Grace Parker, Doris Parker, and Edith Parker (the daughters of my deceased daughter, Sallie Eason); and in tbis connection I direct said J. B. Eason, as snob trustee, in bis discretion and under tbe direction of tbe proper court, to expend and pay out said one-twelftb interest (one-tbird thereof to eacb) for tbe maintenance and education of said Grace Parker, Doris Parker, and Editb Parker during tbeir minority, tbe balance, if any, remaining of tbeir respective one-tbird of said one-twelftb interest to be paid by said trustee to said Grace Parker, Doris Parker, and Editb Parker, respectively, when tbey shall reach twenty-one years of age, but not before.”

It would appear from Item 4 of tbe will, supra, “I direct that all advances or loans so made by me to any of my sons and daughters be accounted for,” etc., when construed with Item 5 as to tbe residue of tbe property, there should be an equal distribution after deducting advancements — like in case of intestacy — equality is equity. It seems that tbe intent of tbe testator was to divide tbe residue of tbe estate after advancements were deducted. It also seems that none of tbe others interested under tbe will make tbe contention that plaintiff does, but are satisfied. It is estimated that if plaintiff’s contention prevailed tbe children of Sallie Eason Parker would receive nearly 75 per cent more than any of tbe other children. For tbe reasons given, tbe judgment of tbe court below is

Affirmed.