Distributees of Mitchell v. Mitchell's Adm'r.

ORMOND, J. The idea of requiring children who had been advanced, during the lifetime of their father, to bring the money or property thus received into hotchpot, when he died intestate, appears to have been obtained in England, from the custom of the city of London, and incorporated in the statute of distributions of 22 and 23 Chas. 1st, as stated by Lord Raymond, in Edwards v. Freeman, 2 P. Will. 449; see also, Holt v. Federick, Ib. 356, and Elliott v. Collier, 1 Ves. sen’r. 17. The custom of London, which was referred to, is, that which — 420 — divided the freeman’s personal estate into three parts, one of which, after his funeral expenses were paid, went to the widow, one to his children uiiadvanced by him, in his lifetime, and the other third, called the dead man’s share, he might dispose of by will. [2 Bac. Ab. Customs of London, 249, c.] And any of the children who had not been fully advanced in the lifetime of the parent, could by bringing the sum so received into hotchpot, share equally with the others in the orphanage part. Our statute upon this subject is to the following effect: “ When any of the children of a person dying intestate, shall have received from such intestate, in his, or her lifetime, any real or personal estate, by way of advancement, and shall choose to come in to the partition of the estate with the other parceners, such advancement, both of real and personal estate, or the value thereof shall be brought into hotchpot, with the whole estate, real and personal, descended; and such party bringing such advancement into hotchpot as aforesaid, shall thereupon be entitled to his, her, or their portion of the whole estate so descended, both real and personal.” [Clay’s Dig. 197, §25.] The question is, what shall constitute an advancement ? By the custom of London, it appears it was not every gift that constituted an advancement. It must be a marriage portion, or “ something to set up in the world with.” [Elliott v. Collier, 3 Atk. 528.] Presents by the father of small sums, unless expressly given by way of advancement, are not to be brought in to hotchpot. [Morris v. Borrough, 1 Atk. 403; Elliott v. Collier, 3 Atk. 527.] Neither is money laid out in education or in travel-ling. [Pusey v. Debouverie, 3 P. Will. 317, in note.] The custom was confined alone to personal property, and a gift of land though expressly intended as an advancement, would be no bar to the orphanage share. [Cevill v. Rich, 1 Vernon, 181.] The father could also, by an act in his life, give away any portion of his personal estate, to one of his children, provided he divested himself of all property in it; but if it was done in extremis, and could be considered as a testamentary act, or if any power was reserved over the subject of the gift, it was considered a fraud upon the custom, as it regarded the other children. [Tompkyns v. Ladbroke, 2 Vesey, sen’r. 591; Elliott v. Collier, 1 Id. 15.] This examination has been made of the custom of London, as it was the original of that portion of the English statute of distri — 421 — butions, requiring advancements to be brought into hotchpot, which was the prototype of ours, and is therefore proper to be considered as.an aid, in corning to a correct conclusion, as to its true intent and meaning. Our opinion therefore is, that when either money, or property, is advanced to a child, it will prima facie be an advancement under the statute, and must be brought into hotch-pot';^ but, that it may be shown that it was intended as a gift, and not as an advancement. Oi’, unless it be of such a nature, that it cannot be presumed to be an advancement, as trifling presents, money expended for education, &c. That it lays upon the children to repel the presumption which the statute creates, is shown in the strong case of Gilbert v. Wetherell, 2 Simons & Stu. 254. The father had lent his son £10,000, to commence business, and the son being unfortunate in trade, the father on his death-bed, directed the note which had been executed for the debt to be burned. The Court held, this was merely an extinguishment of the debt, but did not show that it was not intended as an advancement. The theory of the statute is, that every parent wishes to do equal justice to his children, and that money, or property, given to them during his life, is, and was intended, as a part of their portion, unless he manifests the contrary at the time, or unless such a presumption arisen from the nature of the gift, or expenditure, of which examples have already been given. To apply this rule to the facts of this case. At the time of the execution of the deeds to the two minors, Thomas andThweatt, the father expressed his intention, that it was not given to them as an advancement of the portion of his estate, they would be entitled to at his death, but that it was in addition to their equal share of the residue, in consequence of their youth, inexperience, and want of education, and upon the principles above laid down, was clearly not an advancement, within the meaning of the statute. The case of Columbus W. Mitchell is one of more difficulty. It appears that the intestate kept an account against his son Columbus, which is added up on tlye book, and amounts to f8,632, at the close of which is this entry; “ Accounted for as so much, that he has had of his portion of my estate, if it is over his portion he must pay it back to them” No question arises upon this instrument, as a testamentary paper, nor does it appear to have been proved as such- It appears to have been offered as — 422 — evidence of an advancement, or that he was indebted to that amount, to the estate of his father. Some of the items of which the account is composed, are for expenses at College, whilst tra-velling, and reading law. It is very certain that some of these items could not be considered as an advancement under the statute, being expenditures which it was the duty of the parent to make, or at least of the propriety of making which he was the sole judge. It is true, a parent who had expended more upon the education of one of his children, than upon the rest, might think it his duty to make the others equal with him, by giving him proportionably less of his estate, but he could only accomplish this by a will: it could not be effected by considering it an advancement, as is shown by the cases cited. How far the relation of debtor, and creditor, could exist between the father, and son, we have not the means of determining; as to some of the items of the account it is obvious it could not. Those for example, relating to expenditures at College, and others no doubt belong to the same category. The question which it appears was intended to be presented to this Court for revision, is, not the law arising out of this account, and written memorandum of the father, but whether the parol testimony of the widow of the deceased was admissible. We have already remarked, that this memorandum and account was not treated in the Court below as a testamentary paper, nor was any question made in the Court below in reference to it as such, but it appears to have been offered iá evidence, as proof that the monies there enumerated, was a debt due from the son, or an advance to him. So considered we can see no objection to the parol evidence. It merely went to show, that as to many of the items, the relation of debtor and creditor could not exist between them, as the witness states, that the expenditures were made during the son’s minoi'ity, whilst at College, and reading law ; or at the Springs and at Tuscaloosa, and other places in quest of pleasure — that she remonstrated with her husband, for these reasons, and because he could have prevented these expenditures, against his charging his son with them. This was certainly competent testimony to establish, that these items of the account did not constitute a debt due from the son, or an advancement under the statute from the father, and for this purpose were properly admitted. ■ < — 423 — ' We can perceive no objection whatever to the ascertainment by the jury, of the debt claimed of Mrs. Griffin, on the note executed by her husband. Indeed, whether it was considered a debt or an advancement, was wholly unimportant, if she was chargeable with it, as in either, aspect there was a surplus coming to her, of her distributive share; so that in this case the effect of her owing a debt to the estate, was precisely the same, as if she had been advanced by that amount. - - The charge moved for, by her, upon the evidence offered on the plea of non est factum, was equivalent to a demurrer to the evidence, and should have been given, as asked. Conceding all the facts to be true as stated by the witnesses, and drawing all the iqferences from them which could properly be drawn, there is nothing to show that the husband had any authority to sign the note as her agent, or that he had a general authority to act as such, she having, as it appears, a separate estate. No fact is proved establishing her concurrence with, consent to, or knowledge of, any of the acts said to have been done by him, in her name, and she was therefore entitled to a verdict upon the evidence. It does not appear from any thing in the record, that the Court erred in decreeing the distributive share of Mrs. Griffin, jointly to her and her husband. It is, to be sure, stated in the record, that she had a separate estate, and that her husband was insolvent, but how this estate was created, or in what it consisted, is not shown; and we cannot from this general expression understand, that she had a separate estate in the distributive share of her father’s estate in the hands of the administrator. Nor is it easy to comprehend how such an estate could be created, unless by the act of the husband. In the absence of proof of such an estate existing in her, the Orphans’ Court had no option but to decree in favor of the marital rights of the husband; a Court of Chancery '"'could alone compel him to make a settlement upon her. The Court erred in charging the costs of the trial of the issues made up, to ascertain the amount of the several advancements upon-the particular distributees, who appear to have been most active in contesting the facts. , The objections, though made by a_part of the distributees, were for the benefit of all, and the costs accruing should have been a joint charge upon the estate. There is nothing in the record from which it can be determined, that it was not proper to decree one-fifth part of the slaves to — 424 — the widow. In the absence of a provision made for her by will, one-fifth part is the smallest portion to which she is entitled by statute, and that there was no will is evident from the entire record. The deed executed by the intestate, giving her a life estate in certain land, is not shown to have been testamentary in its character, but conveyed to her a present vested interest, sub-' ject to the contingency of her surviving him. From this examination it appears, that the only error upon the record, is the refusal to charge the jury as requested by Mrs. Griffin, and in charging her with the amount of the note as a debt due from her to the estate; and also, in not taxing the costs of the issues, to ascertain the amount of the several advancements against the estate generally. In all other respects, the decree of the Orphans’ Court is affirmed, and the cause remanded, that it may be reformed in these particulars.