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Stallings v. Stallings

Supreme Court of North Carolina
Jun 1, 1829
16 N.C. 298 (N.C. 1829)


In Stallings v. Stallings. 16 N.C. 298, the then Chief Justice expressed an opinion that, under the Act of 1806, when a person puts a slave into the possession of his child and suffers it to remain there until his death, it will be an advancement to the child, not alone in the case of an intestacy properly so called, but also where, having made his will, he omits to dispose of that particular slave, which is a partial intestacy.

Summary of this case from Richmond v. Vanhook


(June Term, 1829.)

1. The second proviso to the third section of the act of 1806 (Rev., ch. 701), respecting parol gifts of slaves, applies to the whole act, and is prospective in its operation.

2. By that proviso, parol gifts of slaves to children are validated by the death and intestacy of the parent, without resuming the possession, and become effectual from the time the slaves were delivered to the children.

3. Where slaves were delivered to a child, and remained in his possession until the death of the parent intestate, it was held to be an advancement at the time of the delivery, and the subsequent increase was not to be valued in making distribution of the parent's property, nor to be taken as an advancement to the child.

From JOHNSTON. This was a petition for an account of the personal estate and a division of the negroes of one Zadock Stallings, who had died intestate.

Seawell and Gaston for plaintiffs.

Badger, with whom was Devereux, contra .

Davis v. Brooks, 7 N.C. 133 , approved by HENDERSON, C. J.

A division of the latter had been made, under an order of the county court, upon the principles mentioned in a case agreed, which was submitted to STRANGE, J., on the last Spring Circuit, and which was as follows:

"The intestate Zadock Stallings, in his lifetime, put into possession of several of his children the negroes mentioned in the schedules filed by them, and which have been taken into the account of the division of the negroes of which the intestate died possessed. That the said Zadock executed no deed or other written evidence of the transaction, upon his sending the said slaves to the houses of his said children; and that no express gift of the said slaves was made by the said Zadock to the said children, but that the said slaves were put into the possession of the said children in the ordinary manner in which slaves are sent to the younger members of a family upon their settlement in life. That the said (299) Zadock never resumed the possession of any of the said slaves, but that they remained in the possession of the said children until the death of the said Zadock. That during the possession of the said slaves by the said children, and before the death of the said Zadock, the said slaves increased in number and value, which increase had not been estimated in dividing the slaves of which the said Zadock died possessed, as an advancement made to the said children by the said Zadock in his lifetime."

Upon this case, his Honor pronounced judgment confirming the division made under the order of the county court, from which the children who were not advanced appealed to this Court.

By the act of 1766 (Rev., ch. 79), which points out the method of distributing intestate's estates, it is amongst other things enacted: "That in case any child shall have any estate by settlement from the intestate, or shall be advanced by said intestate in his lifetime, by portions not equal to the shares which shall be due to the other children by such distributions as aforesaid, then so much of the surplus of the estate of such intestate is to be distributed to such child or children as shall be advanced in the lifetime of the intestate as shall make the estate of the said children to be equal, as near as can be estimated."

By the act of 1792 (Rev., ch. 364) it is declared: "That when any person shall die intestate, who had in his lifetime given to or put in possession of any of his children any personal property, such child shall cause to be given to the administrator of such estate an inventory, on oath, setting forth therein the particulars by him received of the intestate in his lifetime."

It appears to me that the construction to be put upon the act of 1766 is that advancements made by an intestate ought to be valued at the time they were made, and not at the death of the intestate. But when the two acts are taken together, I think there can be no doubt but that this is the proper construction. The latter act expressly declares that the child advanced shall give to the administrator, (302) on oath, an inventory setting forth the particulars by him or her received of the intestate in his lifetime. It follows, of course, as I think, that such particulars are to be considered the advancements made, and their value at the time is to be regarded as the amount of the advancements. The act of 1806 (Rev., ch. 701) was made for the purpose of preventing frauds and perjuries in contests respecting slaves claimed from parents under parol gifts. And although it invalidated all parol gifts made to children, so that they could not thereby acquire title to slaves, yet if the parent suffered the child to remain in possession of slaves thus given, during his lifetime, and died intestate, the act declared that such slaves should be considered an advancement, and should be regulated by the laws then in force relating to advancements made to children by a parent in his lifetime. The law intended to give the parent a power over property thus situated; but if he did not think proper to exercise it, the property should then be considered as an advancement made, as if that act had never passed.

When a child has been thus possessed of slaves, and retains uninterrupted possession until the parent's death, what view of the property, as an advancement, does the act refer us to? Not to its situation at the parent's death, but to the possession of the property when first taken, and continue as an inchoate advancement, completed by the intestate's death. It could not be comprehended before, because the act gave the parent the power of reclaiming it.

Considering it as an advancement, can there be any doubt that the child must deliver an inventory to the administrator, as the act of 1792 prescribes, setting forth therein the particulars by him or her received of the intestate, in his or her lifetime — not the slaves that he holds at the intestate's death?

I admit that cases of hardship may be supposed, whatever (303) general rule may be adopted; as where one child receives a young female slave; another a valuable male slave, who may be a tradesman. But this only proves that general rules will not suit all individual cases.

There is certainly no hardship or injustice in the consideration that an advancement in the hands of an older child shall increase from the time he receives it until the parent's death, and that it should be valued at the time he received it; because at the parent's death such child may also have a family, and be somewhat advanced in years, and a younger child, to whom the same advancement may be made at the father's death, that was made to the older in his lifetime, may, when he arrives at the same age, have as great an increase in his advancement as the older child has at that time. This is equality, and of course justice.

I therefore think that the advancements should be valued at the time they are received, and not at the time of the intestate's death.

Two questions are made in this case: First, is the second proviso to the third section of the act of 1806 prospective, or is it confined to gifts theretofore made? If it is prospective, at what time shall the slaves be valued? At the time they were put into the possession of the child, or at the time of the parent's death? The first question was decided in the affirmative by this Court in Davis v. Brooks, 7 N.C. 133. The last question has not heretofore arisen. Were we disposed to reexamine the first question, we see no reason to doubt the correctness of the decision in Davis v. Brooks. The proviso can only be confined to gifts theretofore made, by considering it to be a proviso confined to third person, where it is placed, and not applicable to the first, or rather to the whole act, its spirit being contained in the first section. (304) The proviso withdraws the case made in it from the operation of the rule created by the act itself, which case would have been within that rule but for the proviso. The rule prescribed in the third section of the act relates to the time in which suits shall be brought on parol gifts of slaves, made before the passing of the act. The case made in this proviso could not have fallen within the operation of that rule, for that rule fixes the time within which those who are out of possession shall bring their actions. The case made in the proviso is where the claimant is in possession and cannot bring an action. He, therefore, needs not the aid of the proviso to shield himself from the operation of the rule created by the third section, for it cannot reach him. Neither can the least reliance be placed on the phraseology of the proviso, thereby to confine it to past transactions. The Legislature looked to the death of the parent as a consummation of the transaction. The fact of placing the property in the possession of the child was only inceptive, looking to the death of the parent for its consummation. The expression "shall have put" was proper to make the case intended to be embraced by the proviso, for the placing in possession must necessarily have preceded the death of the parent. On the contrary, if the proviso is considered as withdrawing the case made by it from the operation of the first section, it is plain, sensible, and intelligible. That section declares that no gift thereafter to be made of any slave shall be good unless the same shall be in writing. The case made in the proviso is a gift of a slave, and not in writing, which the Legislature declared should be good. That can only be effected by withdrawing from the operation of the first section the case supposed in the proviso. It is therefore a proviso to that section, which being entirely prospective, the proviso has of necessity the same character, and is prospective, also. Most usually, to be sure, a proviso is to be taken as an exception to or as belonging to the section in which it is found. But this is not necessarily the (305) case. Where, from its nature, it cannot form an exception to the rule prescribed in the section of which it is placed, it must be referred to some other part of the act. It cannot be referred to that where it is placed in this case, for it there would lose its essential quality. I have been induced to go at large into this question from the zeal with which this point was pressed upon the Court, notwithstanding Davis v. Brooks, and the general impression of the profession.

This case then presents the second question, above stated. It is the death of the parent intestate which validates and makes good the gift. Without this requisite, the case would fall clearly within the first section of the act. With it, it stands confirmed, as if the act had never been passed. The act of putting the property into the possession of the child makes the gift, it it be not subsequently revoked, or (should the expression be preferred) if consummated by the parent's permitting the slave to remain with the child, and dying intestate, either wholly or as to the particular slave. For should a will be made, and the property thus given not disposed of — that is, should the parent die intestate as to it — the case would be still within the proviso, so far as to make the gift good. For, however we may be disposed to follow up the erroneous decisions of this Court on the question of advancements, and bringing into hotchpot, it is evident that there is no such thing as bringing into hotchpot upon a partial intestacy. When I say there is no such thing, I mean that there should be no such thing. The principle upon which hotchpot is founded is against it; and, however, the cases may stand, no analogies can be drawn from them. It is not a gift at the death, but at the time the slave was placed in the possession of the child, and the circumstances stated in the proviso are evidence, in the estimation of the Legislature, equal to that which is required to a valid gift by the first section. The Legislature has placed both cases on the same ground. Were (306) it not so, what is to become of the issue of the slave born afterwards, no provision being made by the act as to that; it speaking only of the slaves placed in the possession of the child? The case so warmly pressed by the plaintiff's counsel does not at all improve this construction, to wit, the withdrawal of the mother from the possession of the child. Its only effect would be to prevent the operation of this proviso as to the mother; it would leave her issue to be affected by it. Neither is it correct to say that the property must be valued at the time the gift was perfected. It should be valued as it was when the parent intended to pass the property. The change of possession has the character of a gift; but it wanted the evidence of intent, which the Legislature required by the first section, to make it valid, viz., a writing evidencing an intent to give. In the proviso they substituted what they deemed equivalent to writing. The substitute did not consist of a single act, but of a series of acts. The property did not pass until all were completed. But then it was a gift, and a gift from the commencement. For the transaction is entire; it cannot be divided. The first step is an necessary as the last; all parts compose the whole. To make it a gift only from the death of the parent would be to disregard one of the most essential qualities of a gift, the delivery of possession. In the opinion of the Legislature, the mischiefs intended to be prevented by the first section — the setting up of spurious gifts by perjury and misconception — would not arise in the case within the proviso. They, therefore, not only withdrew that case from the operation of the act, but validated it, and made it a good gift. What was made a valid gift? The delivery of possession — the only part of the transaction which on its face bore the character of a gift. The other circumstances are only evidences of that intent, and are in the nature of a confirmation, which relates back, and validates the act confirmed.

(307) A contrary exposition would be attended with the most unjust consequences. Property is placed in the hands of two children: with one is placed a young woman, whose maintenance, with that of her issue, is a burden far beyond the value of their services; with the other is placed a male slave in the prime of life. He is worn out entirely in the service of the child, and at the parent's death is worth nothing. If the property is to be valued as it is then, one child not only labors for the other, but for one who has already drawn largely from the stock on which he had no greater claim than the first. The elder children have also a claim to an advancement in the lifetime of their parents, not generally adverted to, but equal to those of the younger. If a distribution of the whole of the parent's estate is postponed until his death — that is, takes place at the same time — the younger children receive equally with those whose claims have been long delayed, and which, to make them all equal, should have drawn something like interest or increase for the delay. The claims of children do not fall on the parent to the same amount at the same time, but at different times, in different amounts, according to their respective ages. The mode of valuing property at the time the parent places it in the possession of a child preserves this equality; the other destroys it.

Upon the whole, I consider this as an advancement made when the slaves were placed with the children, and, like all other advancements, to be valued at that time, or when made.

PER CURIAM. Affirmed.

Cited: Hinton v. Hinton, 21 N.C. 588; Hollowell v. Skinner, 26 N.C. 171; Cowan v. Tucker, 27 N.C. 81; Lamb v. Carroll, 28 N.C. 5; Person v. Twitty, ibid., 117; Cowan v. Tucker, 30 N.C. 428; Meadows v. Meadows, 33 N.C. 150; Davie v. King, 37 N.C. 204; Richmond v. Vanhook, 38 N.C. 586; Hicks v. Forrest, 41 N.C. 531; Harrington v. Moore, 48 N.C. 58; Airs v. Billops, 57 N.C. 24.

Dist.: Hurdle v. Elliott, 23 N.C. 176.



Summaries of

Stallings v. Stallings

Supreme Court of North Carolina
Jun 1, 1829
16 N.C. 298 (N.C. 1829)

In Stallings v. Stallings. 16 N.C. 298, the then Chief Justice expressed an opinion that, under the Act of 1806, when a person puts a slave into the possession of his child and suffers it to remain there until his death, it will be an advancement to the child, not alone in the case of an intestacy properly so called, but also where, having made his will, he omits to dispose of that particular slave, which is a partial intestacy.

Summary of this case from Richmond v. Vanhook
Case details for

Stallings v. Stallings

Case Details


Court:Supreme Court of North Carolina

Date published: Jun 1, 1829


16 N.C. 298 (N.C. 1829)

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