EeviN, J".
Tbe trial judge based bis judgment on tbe doctrine of
res judicata,
wbicb may be epitomized for tbe purpose of tbis particular appeal in these words:
Where a second action or proceeding is between tbe same parties as a first action or proceeding, tbe judgment in tbe former action or proceeding is conclusive in tbe latter not only as to all matters actually litigated and determined, but also as to all matters wbicb could properly have been litigated and determined in tbe former action or proceeding.
Distributing Company v. Carraway,
196 N.C. 58, 144 S.E. 535;
Moore v. Harkins,
179 N.C. 167, 101 S.E. 564, rehearing denied in 179 N.C. 525, 103 S.E. 12;
Clothing Co. v. Hay,
163 N.C. 495, 79 S.E. 955;
Tuttle v. Harrill,
85 N.C. 456.
It appears, therefore, that tbis precise question arises at tbe threshold of tbe appeal: Was tbe claim now presented by tbe petitioners that tbe intestate made advancements of real estate to tbe respondents, C. B. Neese .and Artis L. Neese, in bis lifetime actually litigated and determined in tbe prior proceeding brought by tbe administrator against tbe widow and children of tbe intestate under Gr.S. 28-165 for an account and settlement of tbe personal estate of tbe intestate ?
It is incumbent upon a party pleading a judgment in a prior action or proceeding as an estoppel to show that tbe particular point or question as to wbicb be claims tbe estoppel was actually in issue and determined in tbe former action or proceeding. 50 C.J.S., Judgments, section 843. See, also, in this connection:
Jones v. Beaman,
117 N.C. 259, 23 S.E. 248. His plea of
res judicata
necessarily fails if it rests on mere assertion or speculation.
Argo v. Commissioner of Internal Revenue,
150 F. 2d 67;
Leicht v. Commissioner of Internal Revenue,
137 F. 2d 433;
Wolfson v. Northern States Management Co.,
221 Minn. 474, 22 N.W. 2d 545.
Tbe respondents, C. B. Neese and Artis L. Neese, do not undertake to specify bow or by whom tbe question now presented by tbe petitioners was raised in tbe former proceeding, or what decision tbe Clerk made in respect to it. They merely invoke tbe record in tbe prior proceeding to sustain their general averment that such question was actually in issue and determined in tbe proceeding by tbe administrator for an account and settlement.
An analytical examination of the record in that proceeding discloses that it does not support this allegation. While the ambiguous averments of the petition of the administrator indicate that he was willing to charge the distributees other than Myrtle King and Alma Trollinger with advancements “either in money, or land, or both” in the distribution of the surplus of the personal assets of the intestate, the decree of 18 January, 1943, makes it plain that the claim now presented by the petitioners,
i.e.,
that the intestate made advancements of real estate to the respondents, C. B. Neese and Artis L. Neese, during his lifetime, was not actually litigated and determined before the Clerk in the former proceeding. The Clerk simply decided that the intestate made advancements of personal property in his lifetime to all of the distributees other than Myrtle King and Alma Trollinger, and directed that such advancements of personal property be charged against the distributees receiving them in the distribution of the personal estate of the intestate. These conclusions find complete support in this provision of the decree itself: “This order and decree is made without prejudice to the several interests of the widow and heirs at law of the said J. H. Neese in and to the real property, which descended upon them from their father, all of which they may own as tenants in common or otherwise, as may he determined.”
This brings us to this final question: Could the claim now presented by the petitioners,
i.e.,
that the intestate made advancements of real estate to the respondents, O. B. Neese and Artis L. Neese, in his lifetime, have been properly litigated and determined in the prior proceeding brought by the administrator against the widow and children of the intestate under G.S. 28-165 for an account and settlement of the personal estate of the intestate?
The answer to this question is to be found in the statutory enactments governing the accountability of children for advancements from parents.
G.S. 28-150 provides that “children who shall have any estate by the settlement of the intestate, or shall be advanced by him in his lifetime, shall account with each other for the same in the distribution of the estate in the manner as provided by the second rule in the chapter entitled descents, and shall also account for the same to the widow of the intestate in ascertaining her child’s part of the estate.”
The second rule in the chapter entitled descents is now embodied in G.S. 29-1. Accountability for advancements is regulated by the proviso to this rule, which is couched in this language: “Provided, that when a parent dies intestate, having in his or her lifetime settled upon or advanced to any of his or her children any real or personal estate, such child so advanced in real estate shall be utterly excluded from any share in the real estate descended from such parent, except so much thereof as will, when added to the real estate advanced, make the share of him who
is advanced equal to tbe share of those who may not have been advanced, or not equally advanced. And any child so advanced in personal estate shall be utterly excluded from any share in the personal estate of which the parent died possessed, except so much thereof as will, when added to the personal estate advanced, make the share of him who is advanced equal to the share of those who may not have been advanced, or not equally advanced. And in case any one of the children has been advanced in real estate of greater value than an equal share thereof which may come to the other children, he or his legal representatives shall be charged in the distribution of the personal estate of such deceased parent with the excess in value of such real estate so advanced as aforesaid, over and above an equal share as aforesaid. And in case any of the children has been advanced in personal estate of greater value than an equal share thereof which shall come to the other children, he or his legal representatives shall be charged in the division of the real estate, if there be any, with the excess in value, which he may have received as aforesaid, over and above an equal distributive share of the personal estate.”
It has been said by a great jurist,
Chief Justice Ruffin,
that the Legislature enacted the proviso “to establish a perfect equality in the division of the intestate’s whole estate, real and personal, amongst his children, excepting only, that no property given by a parent to a child is in any case to be taken away.”
Headen v. Headen,
42 N.C. 159. Nevertheless, the personal property is made the primary fund for the equalization of advancements in personalty, and the real property the primary fund for the equalization of advancements in realty. The proviso establishes these two methods of accounting for advancements :
1.
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EeviN, J".
Tbe trial judge based bis judgment on tbe doctrine of
res judicata,
wbicb may be epitomized for tbe purpose of tbis particular appeal in these words:
Where a second action or proceeding is between tbe same parties as a first action or proceeding, tbe judgment in tbe former action or proceeding is conclusive in tbe latter not only as to all matters actually litigated and determined, but also as to all matters wbicb could properly have been litigated and determined in tbe former action or proceeding.
Distributing Company v. Carraway,
196 N.C. 58, 144 S.E. 535;
Moore v. Harkins,
179 N.C. 167, 101 S.E. 564, rehearing denied in 179 N.C. 525, 103 S.E. 12;
Clothing Co. v. Hay,
163 N.C. 495, 79 S.E. 955;
Tuttle v. Harrill,
85 N.C. 456.
It appears, therefore, that tbis precise question arises at tbe threshold of tbe appeal: Was tbe claim now presented by tbe petitioners that tbe intestate made advancements of real estate to tbe respondents, C. B. Neese .and Artis L. Neese, in bis lifetime actually litigated and determined in tbe prior proceeding brought by tbe administrator against tbe widow and children of tbe intestate under Gr.S. 28-165 for an account and settlement of tbe personal estate of tbe intestate ?
It is incumbent upon a party pleading a judgment in a prior action or proceeding as an estoppel to show that tbe particular point or question as to wbicb be claims tbe estoppel was actually in issue and determined in tbe former action or proceeding. 50 C.J.S., Judgments, section 843. See, also, in this connection:
Jones v. Beaman,
117 N.C. 259, 23 S.E. 248. His plea of
res judicata
necessarily fails if it rests on mere assertion or speculation.
Argo v. Commissioner of Internal Revenue,
150 F. 2d 67;
Leicht v. Commissioner of Internal Revenue,
137 F. 2d 433;
Wolfson v. Northern States Management Co.,
221 Minn. 474, 22 N.W. 2d 545.
Tbe respondents, C. B. Neese and Artis L. Neese, do not undertake to specify bow or by whom tbe question now presented by tbe petitioners was raised in tbe former proceeding, or what decision tbe Clerk made in respect to it. They merely invoke tbe record in tbe prior proceeding to sustain their general averment that such question was actually in issue and determined in tbe proceeding by tbe administrator for an account and settlement.
An analytical examination of the record in that proceeding discloses that it does not support this allegation. While the ambiguous averments of the petition of the administrator indicate that he was willing to charge the distributees other than Myrtle King and Alma Trollinger with advancements “either in money, or land, or both” in the distribution of the surplus of the personal assets of the intestate, the decree of 18 January, 1943, makes it plain that the claim now presented by the petitioners,
i.e.,
that the intestate made advancements of real estate to the respondents, C. B. Neese and Artis L. Neese, during his lifetime, was not actually litigated and determined before the Clerk in the former proceeding. The Clerk simply decided that the intestate made advancements of personal property in his lifetime to all of the distributees other than Myrtle King and Alma Trollinger, and directed that such advancements of personal property be charged against the distributees receiving them in the distribution of the personal estate of the intestate. These conclusions find complete support in this provision of the decree itself: “This order and decree is made without prejudice to the several interests of the widow and heirs at law of the said J. H. Neese in and to the real property, which descended upon them from their father, all of which they may own as tenants in common or otherwise, as may he determined.”
This brings us to this final question: Could the claim now presented by the petitioners,
i.e.,
that the intestate made advancements of real estate to the respondents, O. B. Neese and Artis L. Neese, in his lifetime, have been properly litigated and determined in the prior proceeding brought by the administrator against the widow and children of the intestate under G.S. 28-165 for an account and settlement of the personal estate of the intestate?
The answer to this question is to be found in the statutory enactments governing the accountability of children for advancements from parents.
G.S. 28-150 provides that “children who shall have any estate by the settlement of the intestate, or shall be advanced by him in his lifetime, shall account with each other for the same in the distribution of the estate in the manner as provided by the second rule in the chapter entitled descents, and shall also account for the same to the widow of the intestate in ascertaining her child’s part of the estate.”
The second rule in the chapter entitled descents is now embodied in G.S. 29-1. Accountability for advancements is regulated by the proviso to this rule, which is couched in this language: “Provided, that when a parent dies intestate, having in his or her lifetime settled upon or advanced to any of his or her children any real or personal estate, such child so advanced in real estate shall be utterly excluded from any share in the real estate descended from such parent, except so much thereof as will, when added to the real estate advanced, make the share of him who
is advanced equal to tbe share of those who may not have been advanced, or not equally advanced. And any child so advanced in personal estate shall be utterly excluded from any share in the personal estate of which the parent died possessed, except so much thereof as will, when added to the personal estate advanced, make the share of him who is advanced equal to the share of those who may not have been advanced, or not equally advanced. And in case any one of the children has been advanced in real estate of greater value than an equal share thereof which may come to the other children, he or his legal representatives shall be charged in the distribution of the personal estate of such deceased parent with the excess in value of such real estate so advanced as aforesaid, over and above an equal share as aforesaid. And in case any of the children has been advanced in personal estate of greater value than an equal share thereof which shall come to the other children, he or his legal representatives shall be charged in the division of the real estate, if there be any, with the excess in value, which he may have received as aforesaid, over and above an equal distributive share of the personal estate.”
It has been said by a great jurist,
Chief Justice Ruffin,
that the Legislature enacted the proviso “to establish a perfect equality in the division of the intestate’s whole estate, real and personal, amongst his children, excepting only, that no property given by a parent to a child is in any case to be taken away.”
Headen v. Headen,
42 N.C. 159. Nevertheless, the personal property is made the primary fund for the equalization of advancements in personalty, and the real property the primary fund for the equalization of advancements in realty. The proviso establishes these two methods of accounting for advancements :
1. A child advanced may be charged in the distribution of the personal estate of his deceased parent with these items: (1) An advancement of personalty; and (2) an
excessive
advancement of realty.
Headen v. Headen, supra.
2. A child advanced may be charged in the division of the real estate of his deceased parent with these items: (1) An advancement of realty; and (2) an
excessive
advancement of personalty.
Headen v. Headen, supra.
It is the duty of an administrator to make distribution of the surplus of his intestate’s personal property among those named in the statute of distribution. G.S. 28-149. It is not his function, however, to partition the real estate of his decedent among the heirs.
The administrator of J. H. Neese instituted the former proceeding under G.S. 28-165 to obtain a decree from the Clerk directing the distribution of the sum of $872.62, which constituted the surplus of the personal assets of the intestate, among the widow and children of the intestate. The decree of the Clerk determined what each of these persons was
entitled to receive out of the sum in the hands of the administrator. Under the petition in the prior proceeding, the Clerk properly took into account advancements of personalty in determining the amounts of the various distributive shares. He rightly refrained, however, from considering or determining the question now presented by the petitioners.
Under the proviso regulating accountability for advancements, that claim could not have been properly litigated and determined in the former proceeding; for it was not alleged by any party therein that the respondents, C. B. Neese and Artis L. Neese, received any
excessive
advancements of realty from the intestate during his lifetime.
Ludwick v. Penny,
158 N.C. 104, 73 S.E. 228.
Moreover, the claim of the petitioners could not have been concluded in its entirety in the prior proceeding even if such allegation had been made therein. The proviso regulating accountability for advancements does not make a child advanced in realty chargeable in the distribution of the personal estate of his deceased parent with the full value of his advancements in realty. It renders him accountable in such distribution only for “the excess in value” of his advancements in realty “over and above an equal share . . . which may come to the other children.”
Inasmuch as the claim now presented by the petitioners was not and could not have been litigated and determined in the former proceeding, the judgment sustaining the plea of
res judicata
is reversed, and this proceeding is remanded to the Superior Court of Alamance County with directions that such claim be determined and that appropriate action be taken thereon.
Scott v. Life Association,
137 N.C. 516, 50 S.E. 221.
Eeversed.