Jerkins v. Mitchell

• Decision Date: 31 December 1858
• Citation: 4 Jones 207,57 N.C. 207
• Court: North Carolina Supreme Court
• Parties: ALONZO T. JERKINS v. ALEXANDER MITCHELL AND WIFE and others.

4 Jones Eq. 207

57 N.C. 207

ALONZO T. JERKINS

v.ALEXANDER MITCHELL AND WIFE and others.

Supreme Court of North Carolina.

December Term, 1858.

Advancements in land, by a father, are not to be brought into hotchpot and accounted for in the division among his children of his real estate, unless the father dies totally intestate.

[ Johnston v. Johnston, 4 Ired. Eq. 9, and Brown v. Brown, 2 Ired. Eq. 309, cited and approved.]

CAUSE removed from the Court of Equity of Craven County.

Thomas Jerkins made his will in 1829, and died in 1855, when it was admitted to probate. The will contains several devises of real estate, as well as bequests of personalty, but it turns out that all the realty which he owned at the date of the will, was disposed of by him before that time, but the testator had acquired other and valuable estates in the town of New-Berne, and the county of Craven, and elsewhere, which are set out and described, specifically, in the plaintiff's petition. The petitioner alleges that he and the feme defendants are the only children and heirs-at-law of Thomas Jerkins; that previously to his death, his father had advanced his two sisters, by valuable donations of real estate, conveyed by deed, and prays that partition may be made of the lands descended to them, and now held by them as tenants in common, and that in making such partition, the advancements of realty made in the testator's life-time may be taken into account, and charged against the defendants.

The defendants answered, admitting the allegations of the petition, and submitting to a division, but denying the right of the plaintiff to have their advancements brought into hotchpot for his benefit.

Donnell, B. F. Moore and Stevenson, for the plaintiff .

Hubbard, Haughton, Greene and Badger, for defendants .

BATTLE, J.

In the pleadings, and in the argument of the counsel, it is assumed that the testator, Thomas Jerkins, died intestate as to his real estate. The reason of this is, that though he owned many tracts and parcels of land at the time of his death, in the year 1855, yet they were purchased after his will was made, which was in the year 1829, and therefore did not come within the operation of the act of 1844, ch. 88., sec. 3, which declares “that every will shall be construed with reference to the real and personal estates comprised in it, to speak and take effect, as if it had been executed immediatey before the death of the testator or testatrix; unless a contrary intention shall appear by the will.” This Court had decided in the case of Battle v. Speight, 9 Ired. Rep. 288, that this act did not apply to any will executed before its passage, and the parties to this cause were right in treating the question as settled. But there is another chapter of the act of 1844, which has an important bearing upon the case now before us, and is, in our opinion, decisive of it. The chapter to which we allude, is the 51st, which provides in the first section, “that where any person shall die intestate, who had in his or her life-time advanced to any of his or her children personal property of what nature or kind soever, of value more than a distributive share of the personal estate of said intestate, said child or children, or those legally representing them, shall, in the division of the real estate of the said intestate, if there be any, be charged with the excess in value which he or she has received as aforesaid, over and above an equal distributive share of said personal estate, and the said excess shall be a charge upon the share or shares of the real estate of such child or children as have been excessively advanced, as aforesaid.” The second section enacts, “that where any person shall die intestate, seised and possessed of any real estate, who had in his or her life-time settled any real estate on any child or children of said intestate, of more value than equal to the share which shall descend to the other children of the intestate, such child or children, or their legal representatives, shall, in the distribution of the personal estate of the said intestate, if there be any, be charged with the excess in value of the said real estate settled as aforesaid, over and above the share which shall descend to the other children; and the said excess in value shall be a charge upon the shares of the personal estate of the child or children having real estate settled on him or her, as aforesaid.” The provisions of the act of 1844 were subsequently revised, and are contained, substantially, in the Rev. Code; (see ch. 38, sec. 2, and ch. 64, sec. 2,) but as the testator died before that Code went into operation, we have referred to the language of the original act.

Under the English statute of distributions, as well as under our act on that subject, it has always been held that no advancements were to be...