Dutch's Appeal

The opinion of the court was delivered, by Strong, J. There is in this case no evidence exactly contemporaneous with the deed which the father made to his son, or with those which he made to the son in trust for the daughters (except what is found in the deeds themselves), that indicates whether the conveyances were intended to be simple gifts or advancements. They were assurances of land, and in each case the value of the property conveyed was large, when considered relatively to the [465] whole estate of the grantor. The presumption of law, therefore, is, that they were advancements, and not mere gifts, and hence the burden lies upon those who allege they were not advancements to rebut the presumption raised from the subject and the value of the property thus transferred to the children. Nothing is better settled than that a conveyance of land by a father to a child, either directly or by payment of the purchase-money and having the deed made to the child, is prima facie an advanced portion, and this presumption is greatly strengthened when the value of the land bears any considerable proportion to the father’s whole estate. Our Intestate Act of 1794 enacted that if “any child of an intestate shall have any estate by settlement of such intestate, or shall have been advanced by him in his lifetime, either in real or personal estate, to an amount or value equal to the share which shall be allotted to each of the other children of such intestate, such child shall have no share of the real or personal estates, and if such settlement or advancement be to an amount or value less than the share to which he would otherwise be entitled, if no such advancement had been made, then so much only of the real and personal estate of such intestate shall be allotted to such child, as shall make the estate of all the said children to be equal, as near as can be estimated.” This provision was substantially re-enacted by the revised statute of April 8th 1833, and it was derived from the 22 & 23 Car. II., ch. 10, of which it has been said that it is founded on equality, the most just rule of equity. In 2 Peere "Williams 440, Sir Joseph Jekyl said, “the design of the statute was to do what a just and good parent ought for all his children and Lord Raymond said, “ it makes such a will for the intestate, as a father, free from partiality of affections, would make.” It is noticeable that the act speaks of settlements, which are ordinarily by deed, and its main purpose is to cause equality among children, not equality in that which may remain at the death of the intestate, but equality in the distribution of all that came from the ancestor. The statute itself then would raise a presumption, without the aid of what is known to be the common understanding, that when a father makes a deed of gift to a child, he intends the gift to be an advanced portion, and such is the doctrine of the decisions. In this ease the intestate left four children. To three of them he had made voluntary deeds for lands valued at $13,105. The remainder of his estate was about $35,000. Nearly one-third of his estate he distributed in his lifetime. If the deeds to the three children are not now to be regarded as having been advancements, it must be because the grantees have shown that they were intended as simple gifts, and not as distributions of advanced portions. And this they must have shown by a weight of evidence sufficient to overcome a decided presumption against them. We [466] do not find such evidence in the record. As already remarked, there is no evidence of what occurred at the time when the deeds were made and delivered, except what is found in the deeds themselves. There are two witnesses who speak of declarations of the father, made before the deeds were given to George E. Dutch, the son, in trust for the daughters. They are John G. Hall and W. H. Munn. Hall testifies that the intestate said he intended to give a house to each of his daughters. When this was, does not appear. But it has no bearing upon the deed to the son for the son’s use, and it has no necessary reference to the deeds made for the son in trust for the two daughters. Besides, the words are as applicable to an intended advancement as to a simple gift. An advancement is a gift. And even had there been an intention to make a mere gift at the time when the language was used, the intention may have been changed. The precise question is, what was the intention when the deeds were made, not what it was before or after. And it is very certain that whatever the design of the intestate was at the time of which Mr. Hall speaks, it was never carried into complete execution. The testimony of Mr. H. Munn is no better. It has no reference to the deed made to George E. Dutch, the son. He drew the deeds to the trustee for the two daughters, but h‘e does not appear to have been present when they were executed and delivered. He has no recollection that the intestate said anything as to whether they were gifts or advancements. According to the best of his recollection, it was meant as a gift. This recollection is derived from all the conversations with the intestate. But he cannot say it was ever the subject of conversation between them. He recollects that the word gift, or one tantamount to it, was used. All this is very far from proving that the deed for the benefit of the two daughters was intended to be beyond the equal share of the intestate’s estate. It is quite insufficient to overcome the presumption raised by the law from the nature of the settlement, and the value of the property settled, or to establish what was an inherent improbability. The witness speaks only of his impressions of what the intestate meant, and not of his recollections of what was said. The distinction between an advancement and a simple gift was not alluded to in the conversation. Nor is there anything in the subsequent declarations of the intestate at all inconsistent with the presumption that the conveyances to the three children were intended as gifts of advanced portions. Throwing out of consideration the declarations of the father that the children for whose use the deeds were made, had received their share of his estate, or that his daughter Sarah and his son George had, and regarding alone the testimony adduced on behalf of the said two children, we have 'only that of Mrs. Wendell and Jonas Snyder. Both speak of the same conversa* [467] tion, one which occurred some twenty-five years after the conveyances were made. It was in his last illness, in a lucid moment, after he had been irrational for some time, about a week before the intestate died. He then said he wished the property sold, and the money equally distributed among his four children. He wished Jonas Snyder to do it. This was testamentary language, and it was inoperative as an oral testament. It did not allude to the partial distribution he had made. It was no avowal of what was his intention when he made the deeds twenty-five years before. If they were then advancements, it was not a conversion of them into mere gifts, and as it did not allude to them, it was not even an expression of his opinion respecting their character at first. What the conveyances were at the time they were made, they necessarily remained until some act was done to convert them into gifts. There is then nothing in this case to rebut the presumption that the deeds to George F. Dutch for his own use, and for the-use of his sister, Mrs. Lewis, were advancements. Nor do we see that there is in the proceedings of the Orphans’ Court in partition any estoppel against asserting that some of the parties had been advanced. Mrs. Baxter, the appellee, united with her brother and sister in applying for commissioners to make partition of the land of the intestate. She accepted a purpart and entered into a recognisance to secure to the other heirs their equal and proportionable part of the valuation or price at which it was accepted. But what is an equal and proportionable part ? The Acts of Assembly determine that it is such a share as shall make each child equal with the others, after deducting his advancements. Doubtless a decree in partition is conclusive of the right as between the parties. But right to what ? To the land divided or allotted. To nothing more. It is not too late after partition to settle the matter of advancements to some of the parties, and consequently the distribution of the valuation-money among those by law entitled: Blanchard v. Commonwealth, 6 Watts 809. The decree of the Orphans’ Court is affirmed at the costs of the appellants.