Prevette v. . Prevette

Brogden, J.

The doctrine of advancements arises under our statute in the administration of estates of intestates. O. S., 1654, Rule 2; Mordecai’s Law Lectures, Vol. 2, page 1346. Iredell T. Preverte did not die intestate, but left a will which provided in Item 10 that each of his children was to have $500 from his personal estate upon arriving at the age of 21 years, and if such personal estate was not sufficient to pay said amounts “that the same be made up tO' said children in the division of the real estate.” It was found as a fact by the trial judge, and there is evidence to support such finding, that Pearl Duncan, Mattie Eudaily and Annie T. Preverte, children of testator, have not received the sums of money specified in the will. Consequently, the real estate devised by the intestate remains liable for such portion of said sums as the personal estate shall be insufficient to discharge.

The $100 note and the $700 note, executed by Buell L. Preverte, represented funds borrowed from the executrix long after the death of the testator. These sums are not advancements as contemplated by law. The $700 note contains a recital that the amount thereof “shall be considered as an advancement to me and shall be accounted for by me out of my interest in my father’s estate.” This note was signed by Buell L. Pre-verte, and, of course, is binding upon him, nothing else appearing, but the mere recital in the note would not constitute a lien upon land owned by the plaintiff, his wife, in the absence of registration of the instrument, even assuming that said instrument is eligible to registration. The plaintiff, together with the other heirs at law of Iredell T. Preverte, signed a contract on 27 June, 1928, agreeing “to set aside the sum of $1,250 for the purpose of paying all burial expenses and placing a monument to the grave of his wife, Alice A. Preverte, deceased.” The wording of this agreement does not amount to an express promise to pay so as to impose a personal liability upon the makers. Apparently, it was an agreement by the beirs at law, including the plaintiff, that $1,250 belonging to the estate, might be used for the purpose specified, but there is no provision that if the estate does not have such sum that the parties signing the agreement would be personally liable for payment thereof. At all events the agreement would not constitute a lien upon plaintiff’s land. In the last analysis the plaintiff owns a one-eleventh interest in the real estate of Iredell T. Prevette, subject, of course, to the payment of his debts and such other sums of money as may be necessary to pay in full the $500 to each child specified in Item 10 of the will. The land of the plaintiff is not burdened with the payment of the $100 note or the $700 note, nor of any part of the sum of $1,250 “set aside for burial expenses” of the wife of the testator. Nor is the plaintiff upon the facts in this case, to be penalized with the entire cost of the Superior Court because she asserts her right under the law as a tenant in common to hold her share of the land in severalty and for failure or refusal to account for the notes of her husband heretofore referred to.

The defendants by the exceptions filed by them in this record challenge the judgment rendered chiefly upon the ground that failure of plaintiff to' account for her husband’s notes aforesaid debar her from any interest in the land, and that her deed was fraudulent as it was executed and delivered within four months of the time of filing of a petition in bankruptcy by her husband, the grantor. The merit of these exceptions has been determined by the discussion of the principles of law involved in plaintiff’s appeal.

Plaintiff’s appeal, reversed.

Defendant’s, appeal, affirmed.