Mowry, Administrator v. Smith Others

Bosworth, J. This case comes to this court by appeal from a decree of the court of probate of Burrillville. The question (to be considered, is, whether a transfer of a mortgage, made by a deceased intestate during his life, on the 8th day of November, a. d. 1843, to three of his grandchildren, for the consideration of love and affection, shall be deemed an *259 advancement to such grandchildren, as heirs of the intestate, in the distribution of his estate. The statute enacts, that “ If real estate shall be conveyed by deed of gift, or if personal estate shall be delivered to a child or grandchild, and charged, or a memorandum made thereof in -writing by the intestate, or by his order, or shall be delivered expressly for that purpose in the presence of two witnesses, who were desired to take notice thereof, the same shall be deemed an advancement to such child, to the value of such real or personal estate.” Rev. Stats, ch. 159, § 20. Under the terms of this clause of the statute, the appellant contends, that the mortgage assigned by the intestate, as before recited, was an advancement, because, he says, it was a deed of gift of real estate. It is true that a mortgage in fee is an estate upon condition, defeasible by the performance of the condition according to its legal effect. Yet, before foreclosure, the mortgagor continues the owner of the mortgaged premises, not liable for rents and profits while in possession. The mortgagee has merely a lien upon the premises for the security of his debt, by virtue of which he may obtain possession, in order to secure the payment of his debt. If the debt is paid, the interest of the mortgagee ceases in the estate. A transfer of the mortgage is therefore but the transfer of a lien upon, and not a deed of, the estate. In this case it was a gift of the security, as incident to the gift of the claim which it was designed to secure. The statute declares, that debts due by mortgage of real estate, and the mortgaged premises, shall, before foreclosure of the mortgage, be considered personal property. (See Rev. Stats, ch. 157, § 7.) The transfer of the mortgage under consideration can-' not be deemed an advancement, as a conveyance of real estate by deed of gift. Nor do we think that there is any evidence that the testator intended the transfer as an advancement of personal estate. No indication of such purpose is furnished by the terms of the transfer. That, is in the ordinary and necessary form, for the transfer of this sort of personal property, by gift. No charge or memorandum is made by the testator, or by his order, when it is delivered, or afterwards; and there is no evidence that it was *260 delivered for that purpose in presence of witnesses, who were desired to take notice of the fact. It is contended, that the transfer on the back of the mortgage should be construed as a charge or memorandum, such as the statute declares to be evidence of an advancement. We understand the words “ charged ” or “ memorandum ” to imply that the donee shall be charged, or in a manner made debtor to the testator’s or intestate’s estate, or, that the memorandum shall, in some manner, indicate the nature of the gift as an advancement. In this case no memorandum was made, except the ordinary and necessary form of words to convey or transfer the property — constituting simply the delivery of this sort of personal property. The memorandum was not made to answer any object of the donor, but simply to vest the property in the donee. If the gift had been of a ship, the necessary mode of conveyance would have been by bill of sale ; but the instrument necessary to perfect the gift could not be construed as a charge of the value of it, or a memorandum of an advancement of it, to the donee. The decree of the cowt below is affirmed.