(concurring).
I concur in the foregoing opinion. To my mind there is a further reason why the plaintiffs should pay the $2,000 and interest to Vergie Zimmerman. The plaintiffs and Vergie, with their mother, Tillie Ganser, signed an agreement dividing the mother’s property in consideration of the children supporting her while she lived. This was a joint contract. Sec. 9-0104 NDRC 1943, under which all are bound jointly to the full extent of the promise. 17 C.J.S., Contracts, § 353 b, p. 808; Houston v. Bain, 170 Va. 378, 196 S.E. 657, 663.
In this division of property five of the parties named each received a quarter section of land. Vergie Zimmerman was, in lieu of land to receive $2,000 cash. The evidence shows that in addition to the lands involved there was more than $2,000 worth of personal property belonging to the mother, namely, $1,800 coming from George Ganser for the purchase of her personal property and at least $350 coming from Frank to her on the prior sale of her land to Frank. Out of that personal property $2,000 should have been paid to Vergie. Instead of that, $1,737.10 of the $1,800 due from George was deposited in the mother’s bank account and used for her medical and funeral expenses. Exhibit 1 provided that $30 per month for Tillie’s keep should be paid out of the bank account, “And should the bank account be insufficient to properly provide first party (Tillie Ganser) with clothing and expenses of sickness and accident and funeral expenses, second parties (The plaintiffs and Vergie) agree to jointly and individually furnish such necessary expenses.”
If the $1,737.10 had not been deposited in the bank the plaintiffs and Vergie would have had that much more to pay for the mother’s care and upkeep. In other words they used the money that should have gone . to Vergie to pay an obligation they owed to their mother under the above quoted agreement. In addition to that sum Frank’s note of $350 and interest is still unpaid.
To my mind, therefore, the $2,000 for Vergie was available out of the mother’s estate at the time the contract was entered into and should have been collected then and paid to Vergie.
Flowever, since the plaintiffs have used that money to pay their own obligation it is only equitable that they pay Vergie the $2,000 with interest, less what she owes on the contract for the care of her mother.
If an accounting were taken now of the total expense for the care of the mother and divided among the six children, crediting each for what he or she has paid towards the cost of the care of the mother, such accounting would show the $1,737.10 included therein, which, together with the $350 note of Frank, would be sufficient not only to pay Vergie the $2,000 and interest, but also to pay Katherine and George for any overpayment they have made. By paying Ver-gie, which they must do before delivery of the deeds to them, they are only satisfying their own obligations under the agreement with their mother.