Walker v. . Brooks

6 S.E. 63, 99 N.C. 207

• Court: Supreme Court of North Carolina
• Decided: February 5, 1888
• Status: Published

Opinion

Smith, C. J.

(after stating the case). The intestate left no charges on his books for advancements to the said Ida as he did against others of his children, and she voluntarily renders an account for articles of the value of $45 furnished her, and submits to be charged therefor, and it is quite manifest that in the contemporary delivery to her of the railroad security and her execution of her bond to him for $670, the intent was to give to her as an advancement, or to pay her for kind services to him, and not to be accounted for — the sum of $400, the difference in their amounts — and this only as a severance in the indebtedness upon the railroad security. The absence of any charge upon the intestate’s books for this sum. and the execution of the bond for $670, a debt intended to be created and put in the form of an obligation, repel the idea of an intended advancement, and show that the purpose was to make a present contract capable, were she not a feme covert, of immediate enforcement.

Now, while in law it is not binding, it is an essential condition entering into and connected with the transfer of the railroad security, so that she cannot retain its full amount and repudiate her own part of the transaction in its entirety. In substance, the transfer is of the $400 excess, and such the parties evidently regarded it. It is not a question of her ability to bind herself by a contract, but whether she can be allowed to retain so much as enures to her own benefit and disavow her own part of the agreement, which was the consideration and condition on which that benefit was. accepted.

Coverture disables a woman to enter into a binding contract, but it affords no protection ox shelter for fraud, and she must perform what she promised, or return what she gets by reason of it. This is well recognized as a controlling principle. Boyd v. Turpin, 94 N. C., 137; Burns v. McGregor, 90 N. C., 222; Towles v. Fisher, 77 N. C. 437; Hodge v. Powell, 96 N. C., 64.

The distributee Ida cannot, therefore, keep the railroad bond and refuse to recognize' her responsibility for the amount mentioned in her own bond. As, however, this suit contemplates merely a distribution of assets in the hands of the administrator, she can take none until her own debt is paid, and it goes to increase the sum to be distributed. If she refuses to do this and if charged with it, would, as we understand, be entitled to no part of the augmented fund, she must, if persisting in her purpose, be debarred from participating in the distribution of the personal estate. The Judge, though calling this an advancement, charges her with it; and the same results follow, whether it be called an advancement or a debt, and the misnomer is an immaterial matter. We approve the ruling and affirm the judgment. This will be certified to the Court below.

Affirmed.