Prevette v. Prevette

Decision Date29 June 1932
Docket Number552.
Citation164 S.E. 623,203 N.C. 89
PartiesPREVETTE v. PREVETTE et al.
CourtNorth Carolina Supreme Court

Appeal from Superior Court, Wilkes County; Clement, Judge.

Action by Mettie Millard Prevette against Viola B. Prevette and others. From the judgment, both plaintiff and defendants appeal.

Plaintiff's appeal reversed, and defendants' appeal affirmed.

Funds borrowed by testator's son from executrix held not "advancements" (C.S. § 1654, rule 2).

Recital in unregistered note of testator's son to executrix that sums borrowed should be considered as advancements held not to constitute lien on land owned by assignee of son's interest in estate.

Iredell T. Prevette died on December 21, 1898, leaving a last will and testament. He also left him surviving a widow, Mrs. Alice A. Prevette, who is named executrix in the will, and who died on June 24, 1928. Iredell T. Prevette left eleven children all of said children surviving their mother, Alice A Prevette, but Roscoe Prevette has since died leaving him surviving a widow and one son.

The will of Iredell T. Prevette devised several hundred acres of land and bequeathed his personal property to his wife, Alice A. Prevette, and to his eleven children, as tenants in common. Item 10 of his will is as follows: "It is my will and desire and I so direct, that in the event that my personal estate is not sufficient to pay each of my children Five Hundred Dollars, as each becomes 21 years old, then I direct that such child as may fail to receive the five hundred dollars, out of said personal estate, that the same be made up to said child in the division of the real estate."

Buell L. Prevette was a son of Iredell Prevette, who married the plaintiff, Mattie Millard Prevette, about 1909. On July 27 1915, Buell L. Prevette, then about 27 years of age, conveyed to the plaintiff, his wife, by deed, "all of my right title and interest in the estate of my father, Iredell T Prevette." This deed was recorded on August 21, 1915. Not more than three months thereafter Buell L. Prevette was adjudged a bankrupt.

On August 19, 1910, Buell L. Prevette borrowed $100 from his mother, Alice A. Prevette, executrix of Iredell T. Prevette, and executed a promissory note therefor. On August 21, 1913, Buell L. Prevette executed and delivered to his mother, Mrs. Alice A. Prevette, executrix of Iredell T. Prevette, a promissory note for the sum of $700, containing the following clause: "If not paid by me, the amount shall be considered as an advancement to me and shall be accounted for by me out of my interest in my father's estate." Buell L. Prevette did not list in his bankruptcy schedules the land which he had theretofore conveyed to his wife, nor did he list either of the notes aforesaid. The only evidence bearing upon the proof of the notes in the bankrupcty proceeding was the testimony of said Buell L. Prevette, as follows: "The bankruptcy was advertised and my mother knew it. She was in Hickory and I told her." Buell L. Prevette was duly discharged in bankruptcy on January 25, 1916.

On August 12, 1929, the plaintiff, Mattie Millard Prevette, instituted against all the other heirs at law of Iredell T. Prevette except her husband, Buell L. Prevette, a proceeding to partition the land of Iredell Prevette, and alleging that she and the defendants were tenants in common of said land, and that by virtue of the deed from her husband she was entitled to a one-eleventh undivided interest in said property and desired to hold her share in severalty. The defendants filed an answer denying that the plaintiff was entitled to one-eleventh of said land, alleging that her deed was invalid and that the notes of $100 and $700, given by Buell L. Prevette, constituted advancements to be accounted for in the division of the estate, and that all the heirs at law of Alice A. Prevette, after her death, had signed a paper writing setting apart $1,250 to pay the funeral expenses of said Alice A. Prevette, and that certain of defendants had not received $500 specified in the will of Iredell T. Prevette. The defendants further requested that Buell L. Prevette, the husband of plaintiff, be made a party defendant, and that the interest of the plaintiff in said land should be specifically charged with the $100 note, the $700 note, and her part of the burial expenses aforesaid.

There was an order of reference, and to the report of the referee exceptions were duly filed both to the findings of fact and conclusions of law. Subsequently the question came on for hearing before the judge of the superior court at the October term, 1931, who modified the report of the referee by certain findings of fact and certain conclusions of law. He found that certain sums of money had been advanced to the children of the deceased, including the $100 note and the $700 note to Buell L. Prevette. He further found that all of the defendants except Buell L....

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