In Re Peaden

ClaRKsoN, J. The question involved: Was the provision in the H. J. Smith deed that the grantee was to pay, upon the death of the grantor (or sooner if he desires to do so), the sum of $500 to Lucy Elks (and the petitioners, Emily M. Peaden and Maggie L. Clark) an absolute gift, or was the same subject at all times to the control of the grantor, prior to its actual payment? We think it was an absolute gift — the language of the deed clearly shows it was intended as such. It is well settled that the acceptance of a deed by a grantee renders him liable to pay the consideration. Peel v. Peel, 196 N. C., 182. This is not disputed on the record by Jesse S. Smith, who admits that he is liable for the amount he agreed to pay for the land, and has deposited the $500 with the clerk of the court of Pitt County. The question is to whom should it be paid ? Under the deed, “It is further understood and agreed between the said parties” that he pay “to our daughter, Emily M. Peaden, the sum of $500; to our daughter, Maggie L. Clark, the sum of $500; to our granddaughter, Lucy Elks, the sum of $500.” Lucy Elks died intestate and left her father, James W. Elks, surviving her. O. S., 137, subsection 6, is as follows: “If in the lifetime of its father and mother, a child dies, intestate, without leaving husband, wife or child, or the issue of a child, its estate shall be equally divided between the father and mother. If one of the parents is dead at the time of the death of the child, the surviving parent shall be entitled to the whole of the estate. The term 'father’ and 'mother’ shall not apply to stepparent, but shall apply to a parent by adoption: Provided, that a parent, or parents, who has wilfully abandoned the care, custody, nurture and maintenance of .such child to its kindred, relative or other person, shall forfeit all and every right to participate in any part of said child’s estate under the provisions of this section.” *489 We think the will made by H. <T. Smith inoperative, so far as the subject of this action is concerned. The grantor H. J. Smith agreed with the grantee to sell him the land for $1,500, and it was understood and agreed between the parties that the $1,500 was to be paid $500 to each of the two daughters and $500 to the granddaughter. We think this is an irrevocable gift to the daughters and granddaughter. In 28 C. J., p. 612, part see. 74(4) is the following: “Close relationship between the parties, such as husband and wife, parent and child, and the like, creates a presumption that a delivery of property from one to the other, without explanatory words, was intended as a gift, and such presumption is strengthened by proof that the donor on- previous occasions had made similar gifts. The rule does not apply to transactions between brother and sister, they being regarded as strangers. This presumption, however, does not arise unless there is a delivery of the property, or unless, in case of a gift of land, it is followed by actual and unequivocal possession and improvement.” Section 75(5): “The acceptance of a gift, beneficial to the donee and otherwise complete, will be presumed, unless the contrary is made to appear, even though the donee did not know of the gift at the time it was made. The rule is especially applicable where the donee is laboring under some disability. Thus, where a gift made to an infant is beneficial, and not burdensome, the law will presume acceptance, or, as some courts say, ‘the law accepts it for him.’ ” Harrell v. Tripp, 197 N. C., 426. It is not necessary in this case to rely on any presumption, the unequivocal language of the deed makes it a gift, which the grantee in the deed agreed to pay to the respective parties. It may be noted that the record discloses that there is no administration on the estate of the granddaughter, Lucy Elks. No question has been raised as to this, by the petitioners, appellants, but the court will take judicial notice of the defect. There must be an administration on her estate. Therefore, the judgment is Modified and affirmed.