House v. White

VAUGHN, Judge. Appellant concedes that the children of one of the life tenants are entitled to one-half of the trust fund. He contends, [126] however, that all of those who are entitled to take as heirs of T. L. House are of one class, his grandchildren, and that there should be a per capita distribution to the members of that class. He relies on G.S. 29-16. We must point out, however, that the current Intestate Succession Act was enacted in 1959. It specifically applies only to “estates of persons dying on or after July 1, 1960.” Chapter 879, § 15, 1959 Session Laws. “It is well settled that ‘an estate must be distributed among heirs and distributees according to the law as it exists at the time of the death of the ancestor.’ 23 Am. Jur. 2d, Descent and Distribution § 21 ... .” Vinson v. Chappell, 275 N.C. 234, 241, 166 S.E. 2d 686, 692 (1969); Johnson v. Blackwelder, 267 N.C. 209, 211, 148 S.E. 2d 30, 32 (1966). Under the rules of descent and distribution in effect at the time of the death of T. L. House in 1926, his heirs took per stirpes and not per capita. C.S. § 1654, Rule 3 (1919 and 1935); Crump v. Faucett, 70 N.C. 345 (1874). Appellant contends that Lydia Allsbrook did not inherit any share of the trust funds. He contends that she had received her full share of the estate of T. L. House by reasons of the advancements made to her. We note, however, that advancements are to be accounted for only in case of total intestacy. “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 accounted for except in cases of total intestacy.” Jerkins v. Mitchell, 57 N.C. 207, 209-10 (1858). Here the deceased died testate as to all of his property except the property that reverted to his estate upon the death of his son, W. Lawrence House, without a descendant. The judgment is affirmed. Affirmed. Judges Britt and Parker concur.