#### ELIZABETH B. DAVES AND OTHERS *against*E. G. HAYWOOD AND OTHERS.

Where a fund is direeted by a will to be equally divided amongst children, interest will be charged on advancements out of that fund, whenever it is necessary to make the division eqnal.

A release of interest endorsed upon a note which was never delivered to the releasee is inoperative.

Under our act of distribution advancements made by intestate mothers as well as intestate fathers are required to be brought into hotchpot. Gifts made to the grand children are not required to be thus brought in.

Cause removed from the Court of Equity of Craven County at the Spring Term 1854 of that court.

Edward Graham of New Berne devised and bequeathed a large real and personal estate to his wife, for life, and after-*254wards to bis two daughters, Elizabeth, who intermaried with John P. Daves, and Jane, who intermarried with Wm. H. Haywood, Jr., and to his son Hamilton 0. Graham, to be equally divided : and the will further provides, that if either of these children should die in the lifetime of their mother, leaving children, that the children of such child should take the share intended for his or her parent, and he appointed his wife Elizabeth Graham his executrix, and guardian to his children. The will further provides that she might sell and dispose of such part of the estate as she might find necessary and best for the payment of certain charges against his estate and for the maintenance and education of his children.

The testator lived until all three of his children married, and arrived at the age of twenty one.

Hamilton C. Graham, above mentioned, having married, the following issue was born to him, that is, Edward Graham, Charles Graham and Hamilton Graham, who are plaintiffs in this suit. After the death of the testator, Hamilton C. Graham with his wife and three children, for several years, lived with his mother, the executrix, and he and his family, during that period, were maintained and supported by her, out of the estate and proceeds thereof. She also advanced money to the said. Hamilton C. Graham, at different times, for which she took his notes, and after the death of her son Hamilton C., she continued to support his children until her death.

Elizabeth, one of the above named legatees, intermarried with John P. Daves, who died in the year, 1838, much embarrassed with debts, and upon the final settlement of his estate, it proved insolvent. Among his debts were three notes for- the aggregate of $2300, with interest payable to the executrix, Mrs. Graham, and one for $1200, payable to her individually. At the sale of the property of John P. Daves, it was arranged with the executor of Mr. Daves, and his widow, the plaintiff Elizabeth and Mrs. Graham, that she should purchase at the sale of her husband’s estate to the amount of these *255notes and ■ that she shonld account for the . amount in the distribution of Mr. and Mrs. Graham’s estate. She purchased according to this agreement, and gave her note to her mother Mrs. Graham, for $3775, due in 1838.

Mrs. Graham, the executrix, also made an advancement of $2000 to her son-in-law, Mr. Haywood, for which she took his note, upon which note there is a release of interest, hut without date. There were other advancements made to Mrs. Haywood, by her mother. The distri-butees of the two estates are the same persons, and the proportion of each the same.

The bill was filed by Mrs. Daves and the three children of Hamilton 0. Graham, to-wit: Edward, Charles and Hamilton, and by E. J. Jones, administrator of H. C. Graham against Edward G. Haywood, administrator, *de bonis non*with the will annexed of Edward Graham and as administrator *de boms non*of Mrs. Elizabeth Graham, (the previous administrator, W. H. Haywood, Jr., having died,) and against Mrs. J. E. Haywood, executrix of Wm. II. Haywood, Jr., praying for an account, and a distribution of the estates of Mr. and Mrs. Graham. The defendants answered, and an order was made referring the accounts to a commissioner to be stated.

On the coming in of the commissioner’s report, exceptions were filed by both parties, which raised the following questions, viz:

1st. Whether the commissioner was right in charging Mrs. Daves, with interest on the note given to her mother Mrs. Graham, as executrix of her father?

2d. Whether the commissioner was right in charging interest on the notes given by Mr. Haywood and Hamilton C. Graham.

3d. Whether the children of Hamilton 0. Graham were properly chargeable with the board, money, &c., furnished to him by his mother.

*256Mi. Whether the children of Hamilton C. Graham wee chargeable with the board money, &c., furnished them by their grand-mother aft er the death of their father.

The cause was set for hearing upon the exceptions, and sent t© this Court by consent.

*J. W. Brycm*for the plaintiffs.

*Moore and E. G. Maywood*for defendants.

Battle, J.

The commisioner was right in charging Mrs. Daves with interest on the note given to her mother as executrix of her father. If taken as a debt to the estate, interest was undoubtedly chargeable. The rule is the same, if the money for which the note was given was intended by the mother, as an advancement out of the remainder, limited to the children after the mother’s death, because it is necessary that interest should be charged in order to produce equality in the division of that fund among the children. The commissioner was equally right in charging interest upon the notes given respectively by Mr. Haywood, and Hamilton 0. Graham. The releases endorsed on the notes, never operated for want of a delivery. Indeed, we learn from the parties that, if interest be charged on Mrs. Daves’ note, no objection is made to the counting of interest on the others.

The children of Hamilton 0. Graham deceased, are properly charged with the board, money, &c., furnished to him by his mother. In the distribution of her estate they are to be regarded as advancements. It true, that under the English Statute of distributions, none but the children oí an intestate father are bound to account for advancements, because the father only is under a legal obligation to provide for his children. But our Statute, which was passed originally in the year, 1192, and re-enacted when the Statutes were revised in 1836, (See 1 Rev. Stat. ch. 64, sec. 2,) uses the words, “he or she ” and “ him and her,” in reference to the intestate, *257wliose children were to account for personal property given to them or ¡jut into their possession in their parent’s life time. Both sexes are clearly embraced by these words, and we do not feel at liberty to reject them, but are bound to hold that the legislature intended to apply them to an intestate mother, as well as to an intestate father. With regard to the board, money, &c., furnished by Mrs. Graham, to her infant grandchildren, the rule is different. Even, if such things given to *vnfant*children, were to be regarded as advancements, which we hold that they are not, unless expressed to be so by the parent, (See 2d Williams on Executors, 923, and Meadows v. Meadows, 11 Ired. Rep. 148,) yet they are not to be extended to grand-children, as was distinctly held by this Court, in Headen v. Headen, 7 Ired. Eq. 159.

. The exceptions to the report of the commissioner are all overruled, and the report is in all respects confirmed: and a decree must be drawn accordingly.