Edward Meadows died intestate in 1846, and the present suit was instituted by petition by some of his children against the administratrix and widow and other children for distribution of his estate. A question was made at the hearing, whether one of the children, John A. Meadows, was fully advanced or not; and as to that the parties argued on the following facts: Edward Meadows was a mechanic, and worked at his trade. When this son, John A., was about ten years old, the father purchased a negro boy, and declared he intended him for his said son, and from that time forth the negro was called the son's in the family. The son was then living with his father, and when he became large enough he worked with his father at his trade. After he became eighteen years old the father allowed the son to take the earnings of the negro until he married; and when he married he removed to himself, and carried the (149) negro with him and kept him in his possession, using him as his own until, in July, 1841, for some fault, he sold the boy for $700; and the father assented to the sale. On the part of the son it was insisted that the gift was made as soon as the father purchased the slave, and that the negro should be valued as of that period, or, at the latest, when he had the boy's earnings; while the other children insist that the son was chargeable with the price, $700, and also with the various sums made and received by him as earnings of the boy, after the son was eighteen. The court held the son to be chargeable with the price he got for the negro, that is, the $700; and each side appealed. The opinion of the Court is clear that there was no such possession of the son, while he continued to live with his father, as could constitute a good gift of the slave as an advancement under the statute. An actual delivery and visible change of possession are indispensable to constitute a valid parol gift. This point was so fully investigated in Adams v. Hayes,24 N.C. 361, that it is only requisite to refer to that case as settling it. The Court holds, however, that the gift of the negro became complete, for the purposes of the question before us, when the son left the father and actually took the negro with him. That was a visible change of possession upon an actual, though imperfect, gift by the father; and the negro would, unquestionably, have been an advancement as of that period, under the proviso in the act of 1806, had the son not sold the negro, but retained him in his own possession, until the death (150) of the father intestate. Stallings v. Stallings, 16 N.C. 298; Hinton v. Hinton, 21 N.C. 587. It seems to the Court that to this purpose the possession of the son's alienee is that of the son himself. The substance of the proviso is that when a gift of a slave is made by a parent, either expressly or by implication, and the parent actually parts from the possession to the child and never again takes it, but dies without otherwise disposing of the property by any act inter vivos, or by making a will, the gift thereby becomes complete abinitio, so as to amount to an advancement from that period. That is the effect of what was said upon the construction of the act in the cases just cited and in that of Cowan v. Tucker, 27 N.C. 78; s. c., 30 N.C. 426, in which the judges use the expression that the parent died "without having resumed the possession," and the like, as equivalent to that in the statute of the slave's "remaining in the possession" of the child. Several cases may readily be put which show that such must be the sense of the act. Suppose, for example, that a parent gives six slaves to a child by parol; if they all live and remain with the child until the parent die intestate, the case is within the words of the act, and the slaves constitute an advancement from the time of the gift, and the issue of the slaves are deemed to have been the child's. But if one of the six die before the parent, could it be doubted that the child would, nevertheless, have to account for that one as a part of his advancement? Plainly, he ought; for the gift was of the whole at once, as one advancement, and the child could not keep the other five and their increase, at the original value of the five, and throw the loss of the death of one on the parent. Nay, suppose such a gift of a young female slave, who afterwards has a numerous progeny and dies before the donor: the *Page 117 accident of such death cannot alter the right to the issue, nor change the period to which the advancement is to be referred. For if she had lived longer than the donor, she (151) would have been, alone, the advancement, and no notice would be taken of the children, which would be regarded as belonging to the child, as they came in esse, as incident to the child's title to the mother. Surely, the Legislature could not mean that the death of the woman should make her cease to be an advancement, and, further, convert the issue into several substantive advancements. At what periods would they be advancements? They were never "put by the parent into the possession of the child," and the child would not have a title to them at all, or would derive it through that to the mother, and, consequently, the mother was the subject of the advancement, though dead at the period when the child's title first became irrevocable and complete. Again, if the child die before the parent and the slaves be taken by the child's administrator or executor, and applied in a course of administration, or held as a part of the estate until the parent's death, it seems plain that the slave would still be an advancement to the child as of the time of the original gift; for the case would not be within the mischiefs against which the act is directed; and if the gift were not effectual, the unquestionable purpose of the parent and expectation of the son and his creditors and family would not be defeated. So, if there be grandfather, father, and son, and the grandfather make a parol gift to the father of slaves, and the father makes a like gift to his son of the same slaves, and then dies intestate. Now, in such a case, it may be admitted that the grandfather could annul his gift and take back the negroes; yet, if he did not, it could not have been the intention of the Legislature that his gift should be annulled, as a matter of law simply, since it is plain that, as between the father and his son, the portion given to the son was an advancement, and the very purpose of the grandfather in making his gift originally was to enable his son to provide for his family. The possession of the grandson in such a case must be deemed that of (152) his father, being under him, within the meaning of the Legislature. Again, if the fact of the possession not remaining with the child at the death of the parent, by reason of the prior death of the slave, were to defeat the operation of the proviso, it would produce manifest and gross injustice in many cases; as, for example, by making the child account for hires or profits while he had the possession, though the parties contemplated no such thing. The case of a sale by the child, not invalidated by an objection of the parents, stands upon the same reason *Page 118 with the cases just put. The possession of the vendee is the same as that of his vendor, and, instead of impeaching, completes the advancement. This sale is called that of the son, since the case is understood so to mean. It might be very different if the son did not profess to own the slave and not to sell him as his, but only under the authority of the father, and to ask for the assent of the father as necessary to the validity of the sale. Then, indeed, it would be substantially the sale of the father, and his gift that of the money, and not of the slave. But here the sale is stated to be that of the son, and, of course, as upon his own title; and the assent of his father is to be understood as rather evidence of his approbation of the son's sale, and not importing that he, the father, made it or joined in it. The Court therefore holds that, in this case, the advancement is to be estimated as of the day the negro was exclusively in his son's possession, that is, when he left his father's and took the negro with him; which may be more or less than the price of $700, subsequently received for him — for the case agreed does not state the length of time between those events, nor the value at the former one. Of course, the son is not liable for hires or profits after he had such exclusive possession, as the negro is then taken to be his. Whether the sums given him by his (153) father, while living with him, are advancements or not, the case does not furnish facts to enable the Court to say; for it does not appear what was the amount of those sums, nor for what purpose they were given. It may be possible they were advancements, though it is not very probable, we conjecture. Small sums of money given by a father to a son in his minority, who is living with him, to supply him with clothing or to defray the expenses of the ordinary pleasures and amusements of youth in their rank of life, are not deemed advancements; and the rule would not be varied by the circumstance that the father derived the money from any particular source. We suppose it most probable that such was the nature of this case; and, if so, the opinion of the Court would be that sums given for such purposes, though spoken of as the profits of the negro, would not be advancements, for advancements are understood to be gifts of money or personal property for the preferment and settling of a child in life, and not such as are mere presents of small value or such as are required for the maintenance or education of the child, which the law throws on a father, at all events. Not knowing the facts, however, with precision, the Court cannot determine that point definitely. The decree must, therefore, be reversed — each party paying their costs in this Court; and the cause must be remanded and this *Page 119 opinion certified to the Superior Court, in order that the decree may be there varied accordingly, and further proceedings taken in the case.
PER CURIAM. Ordered accordingly.
Cited: Walton v. Walton, 42 N.C. 139; Credle v. Credle, 44 N.C. 227;Davis v. Haywood, 54 N.C. 257; Shiver v. Brock, 55 N.C. 140; Bradsherv. Cannady, 76 N.C. 447; Kiger v. Terry, 119 N.C. 459.
(154)