The following case appeared from the pleadings. In the year 1843, Sterling Johnston died, leaving a will, executed some time before, in which he devised to one of his sons, John P. Johnston, a tract of land containing 800 acres. He (10) devised also to his six children, by his last marriage, all the residue of his property, to be equally divided between them and their heirs, share and share alike. The testator owned two tracts of land, one containing 2,500 acres, and the other 700 acres, which formed a part of the residue. One of the six children who were the devisees of the residue, and who was named Francis M. Johnston, died before the testator, without issue. The testator left also some other children by a former marriage, and the issue of others, who had died before him; for whom he did not make any provision in real estate, either during his life or by his will. The bill was filed by the five *Page 8 surviving children of the testator by his last marriage, against his other children and the grandchildren, and prayed, in the first place, that partition of the two tracts of land, devised in the residuary clause, might be made so as to allot to each of the petitioners one equal sixth part in severalty; and, in the second place, that the remaining equal sixth part, which had been devised to Francis M. Johnston and lapsed by his death, should be sold and partition of the proceeds thereof be made equally between the petitioners and all the other children of the testator or their issue, as the heirs-at-law of the testator. The decree for partition was accordingly made, and the share that would have gone to Francis M. Johnston, had he lived, was sold, and the master made his report, which was confirmed; and the cause was then removed to this Court, and was brought on upon a motion for further directions as to the division of the money arising from the sale of the one-sixth part of the land, of which the testator died intestate. The sole question is, whether, in the (11) division of this fund, which is considered real estate, the son, John P. Johnston, and the children of the last marriage, who are the petitioners, are to be admitted to shares without accounting for the value of the lands, which those persons take by the devises in the will. The point, then, is precisely that decided inNorwood v. Branch, 4 N.C. 400. As was mentioned by my brother DANIEL, inBrown v. Brown, 37 N.C. 309, the profession has never been satisfied with that decision, and it is known that several, if not all of the Judges who made it, afterwards disapproved of it. The opinion given sets out with the observation, that the great object of the acts of descents, 1784 and 1795, is to make the estates of children, entitled to the inheritance, as nearly equal as possible. But surely that intention is not more clearly to be collected from those acts, which respect the division of real estate descended, than it is from the act of distributions of personal estate, 1789, and the English Act of 22 and 23 Car. II, from which ours is copied.Sir Joseph Jekyl said, that such equality of provision for children was the end and intent of the statute. Yet from the beginning, it was held, that land devised or legacies bequeathed, were not advancements, to be brought into hotchpot in the distribution of a surplus undisposed of by the ancestor's will. Indeed, each of the acts particularly expresses *Page 9 that intent, and in the very same words: "as shall make the estate of all the children to be equal, as near as can be estimated." That, therefore, can afford no reason for a difference of construction. CHIEF JUSTICE TAYLOR then mentions that the use of the term "settle" in the Act of 1784, and that of "lifetime" in the act of Car. II, and our Act of 1766, authorizes the different interpretations there adopted. And this is the whole ground of the opinion. Now, that is entirely a mistake, as it seems to us. For it will be seen that the acts of distribution use both the words "settle" and "lifetime," applying the former to advancements in land, and the latter to (12) portions. The words are, "one-third part of the surplus to the wife of the intestate, and all the rest by equal portions to and among the children of such person dying intestate, other than such child or children (not being heirs-at-law) who shall have any estate by thesettlement of the intestate, or shall be advanced by the intestate in hislifetime by portion or portions, equal, etc." The construction plainly is, that if a child has a "settled estate," equal to a share of the other children in the distribution, or has "a portion advanced in the lifetime" of the intestate, equal to a share, such child shall have no more. So that if the reasoning of Norwood v. Branch had been applied to the statute of distributions, it would have produced this result; that gifts of real estate in the will would, as a settlement, exclude the devisee from any part of the surplus of personalty, not disposed of by the will while a legacy in the same will not exclude. But the true ground, on which, under the statutes of distribution, settlements or advancements were not to be brought into hotch-pot, when there was a will, is, that the language of the acts and their purpose, points only to an "intestate." Walton v. Walton, 14 Ves., 324; Brown v. Brown, 37 N.C. 309. The Legislature intended an inequality between children, when the parent did not himself produce an inequality. Therefore, when the parent dies intestate, the act operates. But, when he disposes of his own estate by will, the law does not interfere; and, if he disposes of part only, the law does not interfere with his dispositions, as far as he has made them by his will, but suffers that inequality to stand and divides the residue equally. Suppose a father to have two sons, and to the elder he devises land worth £ 1,000, and to the younger, land worth £ 500, and personalty worth £ 500, and leaves personalty undisposed of to the value of £ 1,000. It could not be possible the Legislature meant that the second son should have all the land descended, making his share of the realty £ 1,000, as well as his brother's, and then that *Page 10 they should divide the £ 1,000 personalty equally, as it is admitted, notwithstanding his legacy of £ 500, they must do (13) in respect of the personalty. So, the very giving to one son, by the will, more than to another, shows that the parent, for reasons satisfactory to his own mind, intended a greater bounty to the one than the other; and that intention the law did not mean to counteract. It directs an equality, because it presumes the parent would naturally wish it. But here the parent creates the inequality by his own will, and the law has never intended to thwart him. The rule, therefore, was not founded so much on "lifetime" as "intestate"; the latter showing that the subject within the purview of the act was the estate of a man, who had not undertaken to divide his estate among his children, but had left the whole matter to the law to regulate. Now, the Act of 1784, in like manner, in respect to descents to children, expressly uses the word "intestate" — saying, "when any person, having any right to any estate or inheritance of land in see simple, and such person shall die intestate, his or her estate shall descend to all the sons, etc., other than such son as shall have lands settled on him in fee simple," etc. There seems, therefore, to have been no distinction between the statute of descents and the statute of distributions in this respect. We are not aware that the question has ever come directly before the Court since. If it had come before the Judges, who adopted it, we are almost sure, from what we know, that they would have corrected the construction. But whether the present Court would have felt the same liberty of action is more doubtful, as it is better, perhaps, to leave it to the Legislature to enact a new law, as they may deem fit, rather than produce that uncertainty which arises from conflicting judicial decisions. And we believe that the Court would have adhered to Norwood v.Branch, 4 N.C. 400, if the Legislature had not, by recent enactments, plainly given us to understand, what is deemed by (14) that body the proper principle applicable to such cases. By Laws, 1844, Ch. 51, the real and personal estates of parents are made one fund in respect to advancements, and it is expressly confined to cases where "any person shall die intestate, who in his or her lifetime advanced to any child personal property," and "when any person shall die intestate seized and possessed of any real estate, who had in his or her lifetime settled any real estate on my child." It is thus seen, that the Legislature thought it right to refer the settlement of land to the lifetime of the intestate parent as well as the advancement of a portion; and, we think, it can not be doubted that it was always so intended. This removes every difficulty; because we *Page 11 can not suppose the Legislature meant that gifts of land by will, or in the lifetime of a parent not dying intestate, should not exclude from the surplus of personalty, when there is a partial intestacy, but should exclude from the undevised realty, when at the same time it is not so viceversa — that is to say, that gifts of personalty by the will or in the testator's lifetime, would not exclude the donee from sharing in the land. We can not thus suppose, because the Act of 1844 puts the two kinds of estate, real and personal, on precisely the same footing in words, and must have meant that they should be so in fact. We think, therefore, that devises by a parent to a child are not to be brought into hotch-pot with land not disposed of by the will, but the land descended is to be divided, as if that were the whole real estate of which the parent had ever been seized. There must be a decree accordingly.
PER CURIAM. DECREED ACCORDINGLY.
Cited: Donnell v. Mateer, 40 N.C. 11; Jenkins v. Mitchell, 57 N.C. 210.
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