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LEE v. BAIRD.
There are some difficulties presented in treating the word "heirs" in a strictly legal sense. The property passes to the children and grandchildren as personalty and they take the proceeds. "It is too well settled to need citation of many authorities for its support that the term 'heirs' when used with reference to those to whom personal estate is given, means those who take by law, or under the Statute of Distributions." Burgin v. Patton, 58 N. C., 425; Brothers v. Cartwright, 55 N. C., 113; 64 Am. Dec., 563.
We are next required to ascertain the basis upon which the distribution is to be made. "It is well settled as a general rule that if a testator gives an estate to be equally divided between A and B and the heirs of C and the latter has several children, the division will be per capita, but if there be anything in the will indicative of an intention that the devisees or legatees shall take as families the general rule will not apply, and the property will be divided per stirpes, and not per capita." Burgin v. Patton, 58 N. C., 426, citing Ward v. Stow, 17 N. C., 509; 27 Am. Dec., 238. Among the cases cited as falling within the exception to the general rule are Martin v. Gold, 17 N. C., 306; Spivey v. Spivey, 37 N. C., 100; Henderson v. Womack, 41 N. C., 437. In Bivens v. Phifer, 47 N. C., 436, Battle J., referring to the language of Lord Langdale in Martin v. Drinkwater, 2 Beav., 216, says: "I consider the rule as settled that you are at liberty to prove the circumstances of the testator so far as to enable the court to place itself in the situation of the testator at the time of making his will, but you are not at liberty to prove either his motives or intentions." Lowe v. Carter, 55 N. C., 377, at p. 386. Battle, J., in Bivens v. Phifer, 47 N. C., 436, says: "In construing his will in order to ascertain what that provision is intended to be we have a right to look at the condition of his estate as it is found to be at the time when the will was made." Availing ourselves
LEE v. BAIRD.
of this principle and of the admissions in the record in respect to the condition of Mrs. Baird's family known to her, and reading Items 5 and 7 together, it would be difficult to suppose that she intended to give her grandchildren, the children of Mrs. Lee, nearly one-half of the proceeds of the property, especially in view of the fact that the father of these children was a man of large means and in a prosperous condition. There is an evident purpose expressed in Item 7 to have equality in regard to the property directed to be sold. We are, therefore, of the opinion that the case falls within the exception to the general rule and that the children of Mrs. Lee take the portion of the proceeds of the property directed to be sold, which their mother would have taken if living. Are they to account for advancements made to their mother? The general rule is that in case of intestacy grandchildren must account for advancements made to their father or mother, but not gifts made to themselves. The children of Mrs. Lee take under the will as purchasers and not as distributees. The Statute of Distributions is only invoked for the purpose of ascertaining the basis or principle upon which the division is to be made. It will be noted that it is. "my heirs who have received advancements during the life of my husband," etc. Treating the word "heirs" as describ ing the persons who are to take, the children of Mrs. Lee have received no advancements. This, of course, was well known to Mrs. Baird and it was equally well known that, their mother being dead, the word "heirs" could not refer to her. As she has excluded the children of Mrs. Lee from any interest in the Forest Hill and Marr Swamp places by the use of the word "children" we may reasonably infer that she was induced to do so because of the advancements made to their mother, and that she did not intend that her children should account for these advancements in the distribution of the other property because she must have known that to have
LEE v. BAIRD.
done so would practically disinherit them. It is said that she was a woman of intelligence, business capacity and gave her affairs careful and faithful consideration. Her property disposed of other than that specifically devised consisted of her Forest Hill property, the town lots, the Craggy Mountain property and Marr Swamp. She must have known something of the value of her property, and, of course, was fully cognizant of the condition of her family, number of children, etc., and we can not attribute to her the purpose to include the grandchildren in the distribution of the proceeds of the property mentioned in Item 5 and, by requiring them to account for the amount advanced their mother practically disinherit them. In the statement made by the executor the town lots and Craggy Mountain property sold for and is estimated to be worth $7,900. Mrs. Lee, the mother of the children, received $3,100; therefore, to call upon them to account for this, would be to disinherit them. This would be equally true if the Pea Ridge property, given to Mrs. Richards, and the 640 acres given to R. W. Baird, be treated as advancements, as seems to have been done in the estimate made by the executors. We think, however, that this property could not be treated as advancements under the language of Item 7. The term "advancment" as used by Mrs. Baird, must be understood to have been used in its ordinary and legal sense, and not to include property devised in her will. This view is strengthened by the language "who have received advancements during the life of my husband or myself." We, therefore, conclude that the plaintiffs are not to account for the advancements received by their motherthis by reason of the language of the will. The result of our anxious consideration and careful investigation of the case in the light of the authorities we have been able to find to aid us is that the plaintiffs take no interest in the Forest Hill property or in any balance that may remain of the Marr
FISHER V. BANK.
Swamp property; that they are entitled to share in the proceeds of the Asheville lots and the Craggy Mountain property, taking the same share which their mother would have taken, if living; that they are not accountable for advancements. We do not understand that any controversy is made in respect to the rights of the plaintiffs in the share of the property which passed to Victoria Baird, under Item 5 of the will. If she died intestate, their rights are fixed by the Canons of Descent and the Statute of Distributions.
A judgment will be drawn in accordance with the decision of this court as herein set out. The costs will be paid by the executors out of the funds in their hands.
FISHER v. WESTERN CAROLINA BANK.
(Filed June 6, 1903.)
1. ASSIGNMENTS FOR THE BENEFIT OF CREDITORS-LiensCorporations-The Code, Sec. 685—Banks and Banking.
The commencement of a suit by creditors for themselves and all oth
er creditors to set aside a fraudulent deed of assignment by a bank does not create a lien in their favor, where it does not increase the assets of the corporation.
2. ASSIGNMENTS FOR THE BENEFIT OF CREDITORS-Corporations-The Code, Sec. 685-Banks and Banking.
An action brought by creditors of a bank within 60 days of the filing of an assignment for the benefit of creditors, to recover their debt avoids such an assignment.
ACTION by Thomas Fisher and others against the Western Carolina Bank and others, heard by Judge W. B. Councill and a jury, at September Term, 1902, of the Superior Court of BUNCOMBE County.
The defendant, the Western Carolina Bank, a banking corporation created and existing under the laws of North CaroVol. 132-49
FISHER V. BANK.
lina, doing business at Asheville, in the County of Buncombe, and being largely indebted to numerous persons, many of whom had deposited money with it, and, among such depositors, to the plaintiff's appellants herein several amounts respectively, executed on the 12th day of October, 1897, a voluntary assignment to Lewis Maddux, its president, and L. P. McLeod, its former cashier, of all its property and property rights of every kind, consisting very largely of lands in said State, in trust to sell the same and, after paying the expenses of the trust, to apply the proceeds of such sale upon various liabilities of that institution, giving preferences to certain of its creditors for large amounts in different classes. This deed was registered in said County of Buncombe on the 12th day of October, 1897. Thereafter, on the 12th day of October, 1897, the plaintiff appellants, with certain other of said creditors, commenced this action in the Superior Court of said Buncombe County, for the purpose of attacking said assignment upon the ground that it was void as to themselves and the other creditors of said bank because made with the intent to hinder, delay and defraud themselves and such other creditors. On October 13, 1897, at 11:50 a. m., the plaintiffs filed therein their complaint. On October 12, 1897, the Battery Park Bank, one of the creditors who were given the first preference in said assignment, commenced in said Superior Court of Buncombe County an action against the Western Carolina Bank alone for the purpose of collecting its debt. That in said action the said Battery Park Bank, filed an affidavit and thereupon moved for the appointment of a receiver to wind up the affairs of the said bank under Sections 666-668 of The Code. On October 13, 1897, at 11:30 o'clock p. m., the order was made by Judge Norwood appointing temporary receivers of said bank, and on October 16, 1897, the bond required by said order was filed and the injunction is said action was issued. The complaint in said