Atkinson v. Bennett

88 S.E.2d 76 (1955)

242 N.C. 456

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.

No. 670.

Supreme Court of North Carolina.

June 30, 1955.

*79 McLean & Stacy, Lumberton, for respondents, appellants.

Varser, McIntyre & Henry, Lumberton, for defendants Atkinson, appellees.

HIGGINS, Justice.

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 to share in the undisposed of property which the parent left. The child may elect to keep that which has been advanced, but in so doing he is excluded from sharing further until the other children have been made equal. To quote further from Headen v. Headen, supra, "It is true the Act does not provide for the case of advancement to the same child of both kinds of property (real and personal); and it was not necessary to do so in order to give effect to the purpose of the Legislature; which was to establish perfect equality in division of intestate's whole estate, real and personal, among his children, excepting only that no property given by a parent to a child is in any case to be taken away." (Emphasis added.) The case from which the above is quoted has often been cited with approvalthe last time in King v. Neese, 233 N.C. 132, 63 S.E.2d 123.

The preliminary question, whether there is any property to divide, must be answered in the affirmative before the question of advancements arises. Since an affirmative answer does not appear in the record (except by allegation without proof) the case must go back for a further hearing. If further inquiry discloses the mother left an estate, any advancements must be made up to Mrs. Atkinson, first from personalty, *80 if sufficient; if not, then from realty under the formula given in King v. Neese, supra. Ahead of advancements must come the cost of settling the estate, including taxes.

The judgment ordering that Mrs. Atkinson be allotted $28,500 of the property embraced in the deed before equal division shall begin is without support, either in fact or in law, and being insufficient to support the judgment, it must be reversed. Thigpen v. Farmers' Banking & Trust Co., 203 N.C. 291, 165 S.E. 720; Keith v. Silvia, 233 N.C. 328, 64 S.E.2d 178.

It is realized, of course, that the able lawyers who prepared the record and briefs did so in the light of their detailed and intimate knowledge of the facts in the case. The record was prepared in the light of such background. The learned judge who rendered the judgment had the benefit of the transcript of all the testimony developed in the hearings as well as unlimited time to hear arguments. The appellate court, in the nature of things, does not have these advantages. On the record as here presented, we deem it necessary to reverse the judgment and remand the case for further hearing and judgment not inconsistent with this opinion.

Reversed and remanded.