Atkinson v. Bennett, 670
| Decision Date | 30 June 1955 |
| Docket Number | No. 670,670 |
| Citation | 242 N.C. 456,88 S.E.2d 76 |
| Court | North Carolina Supreme Court |
| Parties | Mary Bennett ATKINSON and Husband, John D. Atkinson, Petitioners, v. Eleanor Bennett BENNETT and Husband, John R. Bennett, Respondents. THE SCOTTISH BANK, a Corporation, Administrator of Emily P. Bennett, Deceased, Plaintiff, v. Mary Bennett ATKINSON and Husband, John D. Atkinson, and Eleanor Bennett Bennett and Husband, John R. Bennett, and Mrs. Avis F. Nelson, Defendants. |
McLean & Stacy, Lumberton, for respondents, appellants.
Varser, McIntyre & Henry, Lumberton, for defendants Atkinson, appellees.
The pivotal question in this case is whether the money delivered by Mrs. Emily P. Bennett to John R. Bennett ($28,500 according to the Atkinsons, $23,500 according to the Bennetts) was an advancement to Eleanor B. Bennett or a gift to John R. Bennett. Bearing on the main question and necessary to its solution are certain issues raised by the pleadings. These secondary, though apparently controlling issues are omitted from the findings, conclusions, and judgment of the trial court.
The pleadings raise the question whether the deed executed by Mrs. Emily P. Bennett on November 12, 1949, conveyed all her property, both real and personal, to Mary B. Atkinson and Eleanor B. Bennett to be equally divided between them. The deed is not a part of the record. The only evidence bearing on the question is the testimony of Mr. Holmes, who drew the deed. "It was her instructions and intention that the two daughters should have all the property, share and share alike." It does not appear that she owned any other property at the time of her death and it cannot be presumed that she did. Headen v. Headen, 42 N.C. 159.
Assuming, but not deciding, the mother made an advancement in June or July, 1948, to her daughter, Eleanor B. Bennett, as found by the trial court, and on October 28, 1949, executed and delivered a warranty deed conveying all her property to her daughters, Mary B. Atkinson and Eleanor B. Bennett, to be equally divided between them, can the advancement be taken into account in the division of the property conveyed by the deed, or do the terms of the deed control? In making the deed without providing for advancements previously made, did not the parent cancel out the advancement in so far as the property conveyed by the deed is concerned? While a parent cannot change into an advancement that which was intended as a gift at the time of delivery, there is no apparent reason why a parent cannot by deed change into a gift that which was at the time of delivery intended as an advancement. Prevette v. Prevette, 203 N.C. 89, 164 S.E. 623; Parker v. Eason, 213 N.C. 115, 195 S.E. 360.
For another reason equally compelling, we must hold as error the trial court's conclusion and order that in the division of property conveyed by the deed Mrs. Atkinson first must be allotted property of the value of $28,500 and the remainder be equally divided. Under G.S. § 29-1, rule 2, a child must account for advancements in order to share by inheritance or by distribution in the real estate and personal property owned by the parent at the time of death. The child must first put into hotchpot that which has been advanced in order...
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Edwards v. Batts
...by inheritance or by distribution in the real estate and personal property owned by the parent at the time of death. Atkinson v. Bennett, 242 N.C. 456, 88 S.E.2d 76. Ignoring the fact that, by the terms of said deed, both Adelia Edwards Batts and husband, William Frederick Batts, were oblig......
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...direction given in Trustees of Elon College v. Elon Banking & Trust Co., 182 N.C. 298, 109 S.E. 6, 17 A.L.R. 1205. See Atkinson v. Bennett, 242 N.C. 456, 88 S.E.2d 76, and citation of cases in Strong's N. C. Index--Appeal and Error, Sec. 49, note 590. And it is so Defendant White's Appeal: ......