Johnson v. Belden

Church, Ch. J. Questions of advancement generally arise in the settlement of intestate estates. If an estate be testate, the will of the testator is the only law of distribution. But where wills exist, they sometimes dispose of the estate in reference to former advanced portions: in such cases, the law of advancements must also be consulted. Porter & ux. v. Collins, 7 Conn. R. 1. Coveil v. Thayer, 5 Metc. 250. Thompson v. Carmichael, 3 Sand. Ch. R. 120. Questions of advancement, also, are always questions of intention; and the difficulties in solving them, are generally found in the kind of evidence, by which such intention is to be proved. In some cases, it has been considered, that this intention, if not expressed, shall be inferred, as matter of law, from the character of the act; as where a parent conveys land to the child, from a consideration of love and affection only; and if a parent pay the consideration money for land or for stocks, conveyed by another to the child. In these, and perhaps other cases, the presumption of advancement may be rebutted. But in such cases, or in others, where the law, as in Massachusetts, requires this intention to be expressed, by the intestate, in writing, it has been held, that no subsequent parol declarations of the parent will con-troul the original intention. Straight v. Hatch, 3 Conn. R. 31. Sidmouth v. Sidmouth, 2 Beavan, 447. Bulkley v. Noble, 2 Pick. 337. Meeker v. Meeker, 16 Conn. R. 383. Partridge v. Havens, 10 Paige’s Ch. R. 618. In this state, we have no statute regulations on this subject ; and whether a child has been advanced or not, is here often a very perplexing question in the settlement of estates, and one which creates no little family dissension. The existence of the relationship of parent and child does not furnish sufficient ground to decide, that the delivery of a chattel or the advancement of money, by the one to the other, was intended as a child’s portion. Unexplained, this might as well be treated as a debt or a gift, as an advancement, as if it had been between other persons. A parent may be generous and liberal to his child, without placing him under future accountability, either to himself or to his estate; and he may discriminate in his favours, between his children, if he pleases. The law, to be sure, supposes, in ordinary cases of [326] family arrangement, that equality is equity ; but no person so well as a parent, knows, how such equality and such equity can best be effected and promoted among his children. In many families, a judicious discrimination is equity. Some have supposed, that in the case of Clark v. Warner, 6 Conn. R. 356. this court intended to say, that every con-, siderable gift from a parent to a child, must be treated as advanced portion, and be brought into hotchpot. We do not believe this was meant; and we do not recognize such a principle. Where personal chattels are delivered, by a parent to a child, or moneys are advanced to him or for him, we think, there should be satisfactory evidence besides the mere delivery or advancement, to constitute them chargeable advancements or part portion. There must be evidence of such an intention beyond the unexplained act. And in such cases, the acts and declarations of the parent, either concurrent or subsequent, may be shewn, as evidence, as well of his original intention, as of his final purpose. And so we suppose the court, in the case of Clark v. Warner, intended by saying, “ Had the deceased explicitly declared, that they were not to be deemed advancements or part portion, the case might have been different;" referring here, as they do, to a subsequent declaration. On this appeal from probate, it appears, that the intestate, John Johnson, furnished for his daughter, Cornelia, the wife of David H. Belden, Esq., articles of household furniture, to the amount of 538 dollars, 51 cents, and entered them on his account book, and, at the same time, said, that he did not do this, for the purpose of making a charge, but for his own gratification. This entry was not made on a book or paper where the intestate kept a memorandum or an account of children’s portions, thus affording evidence of his intention to make an advanced portion ; but upon his book of debtors’ accounts : no inference, therefore, can be drawn from this, in support of this entry, as a charge of an advancement. Nor is such an intention to be presumed from the fact, that the articles delivered, consisted of furniture for housekeeping ; as these are as proper subjects of gift as of advancement. But, as this entry upon the book, was accompanied by the declaration of the father, that he meant [327] nothing by it, but his own gratification, it furnishes no proof of intention at all. We shall advise, therefore, that the decree of the court, disallowing said sum of 538 dollars, 51 cents, as a charge of an advanced portion against said Cornelia Belden, be affirmed. The court of probate allowed the sum of 1100 dollars against David H. Johnson, a son of the intestate, and ordered that it be deducted from his distributive share of the estate, as advanced portion. As to this, the intestate never made any account, entry or memorandum whatever. He advanced the money to his son, to set him up in business, as he, the said David, acknowledged ; and this was the only proof of any such advancement; and this, we think, was altogether insufficient to fix that sum upon him, as a part portion of his father’s estate. But if there had been any doubt in regard to it, the subsequent declaration of the intestate to Jacob Beers, Esq., that this sum was intended by him as a gift-a free gift-was proper evidence, and sufficient to prove that it was not an advancement. The decree of the court of probate, declaring the sum of 1100 dollars to be an advancement, should therefore be reversed; and we shall so advise the superior court. In this opinion the other Judges concurred. Judgment affirmed in part, and reversed in part.