Tart v. . Tart

DEFENDANT^ APPEAL. HoKE, J., after stating the case: An advancement has been properly defined as a “free and irrevocable gift by a parent, in his lifetime, to his child, or person standing in place of such child, on account of such child or person’s share in the donor’s estate, which he will receive under the statute of descent or distribution if the parent or donor die intestate.” Thornton on Gifts and Advancements, p. 510. And in note 2 of this publication (p. 510) is cited a definition from 25 Ga., 352, as follows: “An advancement is that which is given by a father to his child, a presumptive heir, by anticipation of what he might inherit." When an adjustment of claims involves a question of advancements, the general rule is, they are to be valued at the time the estate or interest passes (Ward v. Riddick, 57 N. C., 22; Shiver v. Brock, 55 N. C., 137; Moore v. Barrow, 89 Tenn., 101), and in case of a pure advancement, it is very generally held that on an accounting no interest shall be charged before the death of the intestate. Roberson v. Nail, 85 Tenn., 124; Ex Parte Glenn, 20 S. C., 64; Osgoods case, 17 Mass., 356, and in this State it would seem, by authority, that no interest should be charged prior to the time of accounting, provided the same is had within the two years allowed by the law for the settlement of the estate. Scroggs v. Stevenson, *506 100 N. C., 354-360; Hanner v. Winburn, 42 N. C., 142. Tbe principle that no interest is ordinarily chargeable on advancements obtains whether the. same have been made in lands or investments or money, and has been applied in cases where the transaction is evidenced by the claimant’s notes (Roberson v. Nail, supra; Patterson’s Appeal, 128 Pa. St., 269; Krebs v. Krebs, 35 Ala., 293; Green v. Howell, 62 Pa., 203; Thornton, 609), and .the same principle upholds the ruling that where lands have been conveyed by way of advancement, rents may not be properly charged against the owner. Kyle v. Cunaud, 25 W. Va., 760. There was error, therefore, in charging interest against the claimants on the money advanced by the intestate to the different parties or on the price of the lands, valued at the time the same were conveyed to the owners, and the account must be reformed to accord with this decision. The case of Whitfield Tart, Jr., is presented on facts differing, in some respects, from the others. The land was conveyed to him and his children and the advancement thereby perfected on 11 October, 1906. Under our decisions the effect of this deed ivas to convey to Whitfield Tart, Jr., one undivided seventh of the land, as tenant in common with his children. Lewis v. Stancil, ante, 326; King v. Stokes, 125 N. C., 514; Silliman v. Whitaker, 119 N. C., 89. The referee has, therefore, properly charged against Whitfield Tart, Jr., the one-seventh of the value of the land at the time of the conveyance; but for the reasons heretofore stated, the interest on said value to the death of the testator should be eliminated. The report further charges Whitfield Tart, Jr., with the interest on 75 acres of land lying west of the road, which, the evidence shows, said Whitfield Tart, Jr., has controlled, used, and enjoyed since 1885 to the date when this and the remainder of the tract was conveyed to him and his children. This is not a case where rents are not chargeable against the owner of a tract of land, perfected by conveyance by way of advancement, but this was a gift properly chargeable as an advancement for the user of the land by one who was not the owner. A similar case was *507 presented and passed upon in Hanner v. Winburn, supra,, where a slave was placed, by a father, in possession of his son and died before the father had recovered possession. The father then died intestate, and it was held that the slave was not an advancement, but the hire of the slave was, and same was so charged. Ordinarily, the value of the use and occupation of the land as it was when Whitfield, Jr., took possession, would be the correct amount of the charge, but inasmuch as the son has made improvements on the land and it is difficult, if not impossible, to determine how much should be allowed for as permanent, we conclude that on the particular facts of this case the safer rule for estimating this charge will be to follow the course adopted in the report and on this item charge Whitfield Tart with the annual interest on the value of the land as it was when he took possession in 1885. This feature of the report, therefore, will not be disturbed. And on these facts we are of opinion, too, that no allowance should be made to Whitfield Tart, Jr., for improvements. He is only charged with interest on the value of the 75 acres in its unimproved state, and under the conveyance he and his children reap the benefits of such permanent improvements as he has made. There are no special facts or circumstances which require that the valuation of this home place at the time of the conveyance should be disturbed or modified. The remaining portions óf the judgment of the court, sustaining plaintiff’s exceptions No. 3 and No. 6 and Nos. 12 and 13 and all other portions of the judgment as it affects the defendants, are affirmed, except that, for the reasons stated, no interest will be allowed on these advancements. On defendant’s appeal the report should be modified to accord with the principles and rulings made in this opinion, and it is so ordered. Modified. 'PLAINTIEE’s APPEAL. Plaintiffs, other than the administrator of Nancy Tart, the deceased widow of Whitfield Tart, Sr., except to the judgment of the court which directs that the share of the deceased widow *508 in the personal property of the intestate shall be paid, to her administrator. This ruling is undoubtedly correct and should be affirmed. Neill v. Wilson, 146 N. C., 242, 245, citing with approval Whit v. Ray, 26 N. C., 14; Rose v. Clark, 8 Paige, 547; 14 Cyc., 107, 109. Plaintiffs further except for that the grantees of the real estate are not charged with rents. For the reasons given in the opinion in defendant’s appeal, the owners of land conveyed by way of advancement are not chargeable with rents nor with interest on the value of the land. This rule was held not applicable to the charge against Whitfield Tart, Jr., for the user and occupation of'the 75 acres of land possessed and enjoyed by him from 1885 to the date of the conveyance to him and his children. The value of this user was held a correct charge by way of advancement, but owing to the great difficulty of making an equitable adjustment, the Court decided that interest on the value of this land as it was when he first took possession of it was the safer basis of estimate. We do not think there is sufficient evidence to charge Whitfield Tart, Jr., with the value of the timber cut by him on his father’s land, and we are of opinion that the declarations of Whitfield Tart, Sr., as to the value of the several tracts of land conveyed to his sons and after the date of such conveyances are inadmissible on the question of value. Inasmuch as our rulings involve such a pronounced departure from the basis of accounting adopted.by the referee, we deem it desirable that our decision be certified, to the end that the cause be remanded to the referee with directions to restate the account in accordance with the judgment of the court below as modified by these opinions; revising his findings of fact and hearing-further testimony if he considers it desirable to do so. The costs .of the appeals will be divided between the parties plaintiff and defendant. Modified.