{ "id": 8682873, "name": "B. F. ARRINGTON, Executor v. W. T. DORTCH, Executor and others", "name_abbreviation": "Arrington v. Dortch", "decision_date": "1877-06", "docket_number": "", "first_page": "367", "last_page": "370", "citations": [ { "type": "official", "cite": "77 N.C. 367" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "4 Jones Eq. 272", "category": "reporters:state", "reporter": "Jones Eq.", "case_ids": [ 2083077 ], "opinion_index": -1, "case_paths": [ "/nc/57/0272-01" ] }, { "cite": "4 Jones Eq. 272", "category": "reporters:state", "reporter": "Jones Eq.", "case_ids": [ 2083077 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/57/0272-01" ] } ], "analysis": { "cardinality": 390, "char_count": 7336, "ocr_confidence": 0.429, "pagerank": { "raw": 5.659184986478218e-08, "percentile": 0.3528335049649613 }, "sha256": "c432ad050610914dfc6c6e3a65147f98113534efa7c398916b8a8dd551c08f5a", "simhash": "1:1b03e086ee8c9d0c", "word_count": 1270 }, "last_updated": "2023-07-14T20:46:21.915598+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "B. F. ARRINGTON, Executor v. W. T. DORTCH, Executor and others." ], "opinions": [ { "text": "Byktb\u00ed, J.\nBat. Rev. ch. 117, \u00a7 7 provides, that where she dissents from her husband\u2019s will, \u201cthe widow shall have \"the same rights and estates in the real and personal property .of her husband as if he had died intestate.\u201d The Rev. Code ch. 118, \u00a7 12 provided, that \u201cwhere a widow shall dissent from her husband's will, she shall take as fully, and such part of his personal estate as she would take in case of his intestacy.\u201d We can see no substantial difference between the two statutes as was attempted to be shown in\u2019 the argument, and therefore we must give the same construction to the former as the latter has invariably received in the decisions of this Court. Worth v. McNeil, 4 Jones Eq. 272, was .decided in 1858, after the enactment of the Revised Code, mid was a case entirely like the present; in that, advancements had there been made of slaves to the children by a former marriage. It was there held on the dissent of the widow, that in ascertaining her distributive share as in a .case of intestacy, she was entitled to have advancements made under the will estimated as a part of her husband\u2019s \u00a1estate. The same principle was decided in Headen v. Headen, 7 Ire. Eq. 159; Hunter v. Husted, Busb. Eq. 97; Credle v. Credle, Busb. Law, 225.\nHis Honor in the Court below held that Mrs. Drake, one-of the children of the testator, being a legatee under the will must account for advancements made to her, but that the other two children not being legatees, the advancements made to them were not to be estimated in favor of the widow as against the grand-children who claimed under the will. No such distinction can be sustained. In ascertaining the widow\u2019s share who dissents, there is no will as to her, but the husband dies intestate; and of course all his personal estate, whether consisting of advancements theretofore made to children, or legacies to grand-children or strangers, is to be brought together and her share is to be taken out of it pursuant to the statute of distributions. Bat. Rev. ch. 45, \u00a7 103. His Honor was probably misled by what the Court said in Worth v. McNeil, supra,, and by not adverting to the distinction there made between the case of the widow claiming against the will as in an intestacy where all the personal property must be brought in hotchpot.for her benefit, and the case of a division among children claiming' under a will where advancements are not to be accounted for as between themselves. In this case all the advancements are to be accounted for and as of the time when made, and the widow or her personal representative is\u2019 entitled to a child\u2019s part as in case of an intestacy.\nIt may be a hardship upon the children and legatees, as the advancements were made in slaves which have been emancipated by the results of the war, but then the lav/ operates by fixed principles and cannot bend to cases of individual and exceptional hardship.\nThere is error. Judgment reversed and judgment here according to the agreement in the case stated.\nPee Cueiam. Judgment reversed.", "type": "majority", "author": "Byktb\u00ed, J." } ], "attorneys": [ "Messrs. J. J. Davis and C. M. Cooke, for plaintiff.", "Messrs. Busbee Busbee, for defendant." ], "corrections": "", "head_matter": "B. F. ARRINGTON, Executor v. W. T. DORTCH, Executor and others.\nExecutors and Administrators \u2014 Widow\u2019s Distributive Share \u2014 Advancements.\n1. In ascertaining the distributive share of a widow who dissents from her husband\u2019s will, all his personal estate, whether consisting of advancements theretofore made to children, or legacies to grand children or to strangers, is to be brought together, and her share is to be taken out of it pursuant to the statute of distributions.\n2. There is no substantial difference between Bat. Rev. ch. 117, \u00a77, and Rev. Code, cb. 118, \u00a7 12.\n(Worth v. McXeil, 4 Jones Eq. 272; He/rrlen v. Macule\u00bb, 7 Ire. Eq. 159 Hunter v. Husted, Bush. Eq. 97; Cradle v. Cradle, Busb. Law 225, cited and approved.)\nPROCEEDING for the Settlement of an Estate heard at Spring Term, 1877, of Nash Superior Court, before Buxton, J.\nThis pi\u2019oceeding was instituted by the plaintiff, as executor of John Harrison against hi\u00e1 legatees, and W. T. Dortch, executor of his (Harrison\u2019s) widow. The facts as agreed upon were substantially as follows :\nJohn Harrison died in said County in the year 1870, leaving a last will and testament of which tlio following is a copy ; * * * \u201c I give to iny wife, Celestia E. Harrison,, one year\u2019s allowance, one hundred dollars in specie, and (a considerable'amount and variety of personal effects.) The three beds and the stock not disposed of to be sold at my death, and the household and kitchen furniture, still and fixtures, to remain in her possession during her natural life, \"Whatever she may bring here I consider hers.\n\u201c My desire is that all the land on the south side of her dower, including the tract on which N. C. Harrison formerly lived, be sold or divided between N. C. Harrison\u2019s children. After the death of my wife, the dower to be divided \u2022equally between the children of my deceased son, John E. Harrison; viz, Bettie and Mary.\n\u201c I have already given to my daughter, Mary Drake, one note for $500 and one gold watch, to be handed to her after my death. My will is that all the bonds and money on .hand, if any, and the \u00a1proceeds of the sale be equally divided between my grand-children, who have already been mentioned in this will.\u201d\nAfter the death of the testator, his widow dissented from the will, had her year\u2019s support allotted, and in 1873 she married again, and died in 1874, leaving a last will and testament which was admitted to probate, and the defendant, Dortch, named as her executor duly qualified as such.\nBefore the marriage of the plaintiff\u2019s testator with said Celestia E., he made advancements to his children, ^the said John E. and N. 0. Harrison and Mrs. Mary Drake) of slaves and other personal property of the value of several thousand dollars ; they being his only thildren by a former marriage. It was insisted by the defendant executor, that said advancements should be accounted for in ascertaining the share of his testatrix in the estate of her first husband. It was insisted by the other defendants, that the defendant executor was only entitled to one-fourth of the personal property, and that the other three-foui\u2019tlis should be divided between the defendants, who are grand-children of the plaiirtiff\u2019s testator.\nIt was then agreed, that if the Court should be of opinion with the defendant executor, all the money in the hands of the plaintiff should be paid over to said Dortch; for that, the same is not equal to the value of advancements made to \u2022each of said children ; and if the Court should be of opinion that the defendants are not required to account for the advancements, then it was agreed that one-fourth should be paid to said Dortch, and three-fourths divided equally between the defendants, wbo are grand-children of the plaintiff's testator.\nThereupon His Honor decided that said Dortch was entitled to one-fourth of said personal estate, and that the grand-children \u2014 residuary legatees in said will \u2014 were not chargeable with advancements made to their parents, nor were the advancements to be taken into hotchpot for the benefit of the widow. And as Mrs. Drake was a legatee, she would have to account for any advancements she may have received. Erom this ruling the defendant executor appealed.\nMessrs. J. J. Davis and C. M. Cooke, for plaintiff.\nMessrs. Busbee Busbee, for defendant." }, "file_name": "0367-01", "first_page_order": 381, "last_page_order": 384 }