Harrelson v. Gooden

• Decision Date: 15 December 1948
• Docket Number: 666
• Citation: 50 S.E.2d 901,229 N.C. 654
• Parties: HARRELSON et al. v. GOODEN et al.
• Court: North Carolina Supreme Court

50 S.E.2d 901

229 N.C. 654

HARRELSON et al. v. GOODEN et al.

No. 666

Supreme Court of North Carolina

December 15, 1948

Varser, McIntyre & Henry, of Lumberton, for appellants.

McLean & Stacy, of Lumberton, for appellees.

DEVIN Justice.

In the partition proceeding instituted by the three feme petitioners for the division of the lands which descended to them as heirs at law of their father A. W. Gooden, deceased, they sought to exclude from a share therein their brothers, the defendants Carl and Alden Gooden, on the ground that these defendants, by conveyances to them of land without consideration by their father, had been advanced their full shares in the father's estate. Subsequently a voluntary nonsuit was entered as to defendant Carl Gooden.

The issue raised by the pleadings, and supported by the evidence offered, as to the defendant Alden Gooden was submitted to the jury and answered in favor of the plaintiffs. The jury found that the real property described in the deed from his father should be accounted for by the defendant Alden Gooden as an advancement in the division of the estate. Judgment so determining the question thus litigated was entered by the court, and the defendant Alden Gooden appealed.

The statute, G.S. s 29-1, Rule 2, provides in substance that when a parent dies intestate having settled upon or advanced to his child any real estate such child shall be excluded from share in the real estate descended from his parent except so much as will when added to the real estate so advanced make his share equal to those who have not been advanced. And in case the advancement in real estate is of greater value than an equal share descending to the other children, the one so advanced shall be charged in the distribution of the personal estate of the parent with the excess in value over an equal share.

The purpose of the statute is to produce equality among those equally entitled to property descending from a parent, in accord with the presumed intention of the parent. Jerkins v. Mitchell, 57 N.C. 207; Nobles v. Davenport, 183 N.C. 207, 111 S.E. 180, 181, 26 A.L.R 1086. The doctrine of advancements is of ancient origin and pre-existing custom was made the subject of enactment in England in the reign of Charles II, 1682-1683. The North Carolina statutes on the subject began with Laws of 1784 Chap. 22, sec. 2. In the language of Justice Adams in Nobles v. Davenport, supra, 'In its legal sense an 'advancement' is an irrevocable gift in praesenti of money or property, real or personal, to a child by a parent, to enable the donee to anticipate his inheritance to the extent of the gift '. Parker v. Eason, 213 N.C. 115, 195 S.E. 360; Paschal v. Paschal, 197 N.C. 40, 147 S.E. 680. Whether the gift is an advancement or not depends on the intention of the parent at the time the gift is made. Bradsher v. Cannady, 76 N.C. 445. The nature of the gift, the consideration expressed, and the circumstances under which it is made are material in determining the intention. Harper v. Harper, 92 N.C. 300. When a parent dies intestate having previously made a conveyance of land of substantial value to one of several children for a nominal consideration, the presumption is that he intended the land thus conveyed as an advancement. Melvin v. Bullard, 82 N.C. 33; Harper v. Harper, supra; Kiger v. Terry, 119 N.C. 456, 26 S.E. 38; Nobles v. Davenport, supra; Ex parte Barefoot, 201 N.C. 393, 160 S.E. 365. And the value of the advancement is to be determined as of the date of its making. Stallings v. Stallings, 16 N.C. 298; Lunsford v. Yarbrough, 189 N.C. 476, 127 S.E. 426.

In the case at bar the question litigated was whether the conveyance of 14 1/2 acres of land by A. W. Gooden to his son Alden Gooden for the recited consideration of 'ten dollars and other good and valuable considerations paid' was intended as an advancement, or was a sale for a substantial consideration. This was the ground on which the contest was waged. The issue submitted followed the language of the statute. Harper v. Harper, supra. The appellant offered evidence of a book...