What is meant by heir at the common law, in the case cited, is heir by the general law of the country, and not by the special laws of a particular place. The act of distributions is not repealed, and every person who is heir, is entitled to the benefit of it; and is not obliged to account for the lands settled on him by his parents : Therefore allow the exception. As to the exception which states that the defendant purchased for the widow * fleets at the sale of the deceased, she is a debtor to him for the amount, and he has a right to deduct that amount, from her share, altho’ the conveyance to the plaintiff of half her share preceded the purchase.
Davis v. Duke, 3 N.C. 224, 2 Hayw. 224 (1802)
Oct. 1802
·
North Carolina Superior Court
3 N.C. 224, 2 Hayw. 224
Davis vs. Duke.
ry-HIS was a petition for a part of the distributive share of Mary Duke, widow of the deceased : she having conveyed one half to the plaintiff. The defendant was the administrator of the deceased husband. A reference had been made to several persons, to state the amount of the estate, and the credits to which the administrator was entitled, so as to ascertain the share of each distributee. They had charged the administrator, who was the only son of the deceased, who had died prior to the year 1795, but after 1784, with the value of a tract of land, purchased and paid for by the father, but conveyed by his direction, im-medately from the seller to the defendant. They supposed this was an advancement for which he ought to account to the other distributees. The defendant’s counsel txcepted to this charge, because he being an heir at law, was, under the act of distributions not obliged to account for it.
Counsel for the plaintiff e contra.
First, the heir spoken of 5n the act of distributions was an heir at the common law, 2 Eq. Cas. Ab, 448. And since the act of 1784, concerning descents of real estates, there was no Lv/r at the common law in this state. The heir was favored in England, because it was agreeable to the spirit of its constitution, to keep estates undiminished and undivided in one hand. That policy is directly against the spirit of our constitution. The distinction made by the act of distributions, in favor of the heir, is not new to be encouraged. Secondly, if every person who is made an heir by 1784 is to be exempt from accounting for the value of tke land he has received, the act 1784 makes mere persons unaccountable than the act of distributions did : For now the second, third and other sons *225’ata not accountable, who by the of distributions were so. It is more consonant with the act of 1784, to say ttr-s part of the act of distributions is repealed, than to say that every heir chalí be t x-erupted from bringing into botch pot. It is more in unison with the spirit of our laws, to narrow, than to extend the operation of toe ace of distribationcoa ihis head. Grc^t riquai tv was the. eject of the act e,f l’/34, but what is contended lor makes greaUr in, qua» lity s For according to what is argued, foi the defendant, if now a man dies, leaving S sous and !í daughteis, and has given to each, of his sons lands worth a,a hundred pounds, and has left an estate of three hundred pounds j the second and third son shall take fifty pounds out of the three hundred, and each of the daughters fifty pound-; s whereas before the act of 1784, the second and third sons must have thrown in their hundred pounds or have submitted to take nothing ; in which case the share of each daughter would have been seventy-five pounds. If the act of distributions be repealed as to this pan of it, then each son and daughter will have an hundred pounds. Some difficulty may indeed arise by such a construction, in the division amongst the heirs, of any lands which may be left undisposed of; For by the act of 1784, each heir is to account with the other heirs for the land he has received : And therefore, in the case stated, if one heir had received nothing, the first son for iustaiiee, he would receive out of the personal estate seventy-five pounds, and the second and third sons nothing, because of the land ; and if the land was of the value of an hundred pounds, he would take the whole, and they nothing, because of the land. The answer is, if thev account for it in the personal estate^ then only the surplus should be accounted for amongst the heirs; in which case the lands of the value of an hundred pounds would be divided by taking so much for each from the hundred, and adding to the' surplus of each what would make him equal: here again would be complete equality. The act of 1784 saying one heir shall account to another, if it mean for so much, as he is not obliged to account for under the act of distributions, will be productive of that equality which all our laws aim at; it is better to keep the second and third son accountable as before, and to say that the act of distributions is repealed as to the first son, than that it is extended to the others. The act of 1784 says nothing expressly upon the subject: But as its meaning must be found out, and was either to repeal the act of distribute ns on this point, or to extend it, I think it more agreeable to the spirit of that act, to i't peal than to extend the aet of distributions. Then it will follow, that when the act of 1784 directs the heirs to account a-mo.5g;t themselves, it must mean, subject to the act of distributions. They must either account, subject to the act elf distributions, or not bring into hutch pot at a!!. And it is better to ac-dfíívsy by - • accounting,*'' : a greaterinequa» *226liiy than before. The heirs have advantages enough without the construction contended for. They take the lands left by the deceased exclusively, and a share of *he personal estate also t The lands are not liable for debts in the present instance, but the personal estate. After all this, is it necessary to sa\, that as to the small pittance of the personal estate still left, they shall share it with the daughters and not account for the land they have received from the father in his life time.