Hollister v. Attmore, 58 N.C. 373, 5 Jones Eq. 373 (1860)

June 1860 · Supreme Court of North Carolina

58 N.C. 373, 5 Jones Eq. 373

WILLIAM HOLLISTER, Adm’r., against SITGREAVES ATTMORE AND OTHERS.

Where a father joined in a deed with his sister, giving to certain of his children property that had been .intended for them by another sister, whose-will, to that effect, failed to be executed from accident, the father and sister being the next of kin and sole distributees of the deceased sister, it was-Held that in the distribution- of the father’s estate, these children were not bound to bring in this property as an advancement.

Where things given by an intestate father to his daughters, were such as were needed on their starting in life, and were calculated to aid and advance them, there being nothing to show that they were not intended as advancements, it was Held that they must be so considered.

Cause removed from the-Court of Equity of Craven county.

The bill is filed by the administrator of George S. Attmore, asking the direction of the Court in the distribution of the personal estate of the-intestate. He states, as difficulties-in the way of a settlement, that his- three daughters, Hannah, now the wife of William- IT. Oliver, Sarah, the wife of .Robert S. Primrose, and Pebecca Attmore, claim to hold certain articles of household- furniture) as gifts from the intestate in his life-time, and that they ought not to bring them into- hotch-pot. Hannah, on the death of her mother, several years ago,, took charge of the household affairs of-her father, and managed the-same, at his request, until her marriage,- and while so-residing and managing his business, he gave her a bed and bed-stead, a wardrobe, two bureaus and a washstand, being furniture in the chamber which she occupied. To his daughter, Rebecca, who always resided with him, her father gave a bed-stead, bureau, wardrobe and wash-stand, furnishing it for the chamber which she occupied, and to Sarah, on her intermarriage with the defendant, Primrose, he gave a set of bed-room furniture, consisting of wardrobe, bed-stead, washstand, bureau, chairs, &c., and he states that he is doubtful as to his duty in the premises, and desires a declaration of the Court for his protection. lie likewise sets forth, that the intestate, in his life-time, conveyed, by deed, a number of slaves ahd other property to Sitgreaves Attmore, his son, which he claims to hold without bringing the same into hotchpot, under the following facts : Miss Sophia E. Attmore, a sister of the intestate, had prepared the draft of a will for the disposition of her property, in which she gave to the defendants, Hannah and Sarah, each five shares of bank stock; to her sister, Mary R. Attmore, one thousand dollars; to some more distant relations smaller legacies, and the bulk of her estate to her nephew, the defendant, Sitgreaves Attmore, which draft she showed to the intestate, desiring to execute it as her will; the latter, who was an attorney at law, took the paper for the purpose of putting it into a more formal shape, and did so, observing the exact bequests as contained in the draft, but his sister had become too ill to execute the will when it was prepared and brought to her, and she died without ever having done so. The intestate, Ueorge S. Attmore, and his sister, Miss Mary R. Attmore, were the next of kin of Miss Sophia Attmore, and as such entitled, by the statute of distributions, to all her estate*. They agreed that the desires of their sister should not be defeated by the accident which had occurred, and they joined in a deed, conveying to the defendant, Sitgreaves, all the property their sister had attempted to bequeath, in trust, to dispose of the same in exact accordance with the provisions of the script which the intestate had prepared^ which provisions are recited in said deed. The defendant, Sitgreaves, administered on his aunt’s estate, and made the distribution of it according to the terms of the deed above recited, paying to the several persons designated, the several sums, and delivering to them the specific property as therein provided, and retaining the residue for himself. The question is as to the property thus conveyed to him by his father: whether he is bound to account for the same as an advancement; and the same question occurs as to the defendants, Elannah and Sarah, to whom the bank stock was given by the deed. The answers of the defendants do not very the above statement. The cause was set down to be heard upon the bill and answers, and sent to this Court.

J. W. Bryan, for the plaintiff.

Hauglvton and Oreen, for the defendants.

PeaesoN, O. J.

An advancement is a gift by a parent to a child, of a portion of his estate, in anticipation of the whole or a part, of the share to which the child would be entitled at the death of the parent, under the statute of distributions, in the event of his dying intestate.

In respect to the gifts of the several articles of furniture, made by'the intestate to his two daughters, Eebecca and Sarah, there is nothing to show that he did not intend them for advancements. Such things are needed by daughters when they start in life, and the presumption is, the parent intended to aid or advance them by those gifts. In respect to the gift of similar articles to his daughter, Hannah, the circumstance that she continued, after her marriage, to live with her father, and took charge of his house and house-hold affairs, (his wife being dead,) for aught that appears, was an arrangement mutually convenient and agreeable to the parties, and is not sufficient to bring her case within the principle laid down by Winburn, part 3, sec. 8, p. 28 page 234 : “ If a son has deserved a good turn at his father’s hands ; this is no advancement, but a recompense of that which was formerly deserved,” so it must also be treated as an advancement.

The gift made to bis son, Sitgreaves, by the deed executed by the intestate, and his sister, Mary Attmore, stands on a different footing. There is a well established principle of equity, which prevents it from being treated as an advancement.

Where creditors compound with a debtor, and agree to release their debts, upon his paying say fifty cents in the dollar, if one of them has taken from the debtor a covenant to pay the full amount of his debt, equity does not permit the covenant to be enforced, on th^ ground that it is a fraud upon the other creditors, who were induced to enter into the arrangement because they supposed all did so. So a secret agreement in fraud of the relations of one of the parties to a marriage, by which a part of the fortune paid, is to be received back, will be relieved against in equity ; Adams, 180. ,

Upon the same principle, it is clear, that if the intestate had, before executing the deed in question, taken from his son a covenant to pay back to him his share of the property conveyed b.y the deed, equity would uot have allowed the covenant to be enforced ; on the ground that it was in fraud of the intention of the sister, who was induced to give her share, because she supposed that her brother was likewise giving his share, and her object in joining with the brother, ^as to give' effect to the intended gift of their deceased sister, from whom the property was derived.

The effect of treating the property conveyed by this deed, as an advancement by the intestate to his son, is precisely the same as if the son had paid back his share to-the intestate, in, his life time, so as to let it devolve as a part of- his-estate, for the estate is made just that much greater, and each child’s part is just that much more ; and the naked question is shall: that be done by operation of law, which equity would not have permitted the parties to do directly ? Surely not.

There is this further consideration. Miss Mary Attmore provides, in the deed, for the payment to her of the $1000 which the deceased sister intended to give to her, showing :- that her object was to carry precisely into effect, what was. known to have been the wishes of their deceased sister, and. leading to the inference, that if she had supposed' her brother, was to take back his share, either directly or indirectly, .by having it treated as a part of his, estate, after his death,, and thereby disappoint the intention of the deceased sister, she-would have kept her own share, to do with it as she,pleased.

The bank stock, which is given by the deed'to Hannah and Sarah, two of'the-daughters of the intestate, evidently stands on the same footing-with the gift to his son, and. cannot he-treated as advancements, the intention.being that they should' receive this stock, notas a gift from their father and" aunt Mary,, but should take it in .the light of a-gift from.their deceased, aunt.. No one can read the deed., and fail to see that such.is. its-true meaning'and intent, and to.-feel gratified, because there is-no principle of law to interfere with the praiseworthy purpose which actuated' both.the brother and sister in.executing the deed.

Pee. CüBiAMj. Decree accordingly..