Hill v. Stark

Whittle, P., delivered the opinion of the court. The case is this: Appellant, Adina Hill, a daughter of Kate N. Stark, deceased, filed her bill in equity against the administrator and the other heirs and distributees of her mother, who died intestate, for partition and distribution of her real and personal estate among those entitled. The sole controversy arises out of the prayer that the defendant, J. C. Stark, a brother of complainant, be denied participation in the distribution of the estate until he shall have brought into hotchpot the sum of $4,000, alleged to have been received by him as an advancement from the decedent in her lifetime. [282] J. C. Stark, in his answer, controverts the allegation that the sum in dispute was an advancement, but avers that he was a purchaser for value of the fund by contract in writing* From a decree sustaining the defendant’s contention, this-appeal was taken. The contract referred to was entered into by Kate N. Stark and J. C. Stark on August 16, 1909, and in substance’ is as follows: The first party employed the second party as her agent and attorney in fact to manage and control her interest in a partnership between herself and T. H. Brown, as Brown & Stark, in the dry goods, boot and shoe business-at Culpeper. The second party was to manage and control the interest of the first party in the business according to' his judgment and discretion without interference on her part, and to act in all respects in connection with the business as if he was the partner instead of the first party, and his name was so to appear in the firm. As compensation for his services the second party was to receive the profits of the business; and if the first party died during the continuance of the partnership, her interest therein, including hei: contribution to the capital stock, was “at once to pass to and become the property of the party of the second part, and shall not pass to the personal representative of the party of the first part, but should the party of the second part die during the continuance of -this contract, then the party of the first part to have the original capital, and the profits to go to the estate of the party of the second part. “In consideration of the premise and undertakings on the part of the party of the first part, the party of the second part agrees to pay to the party of the first part, the interest on $4,000 during the continuance of this contract, such interest to be paid in equal monthly instalments.” The original contract stipulated that the partnership; should last for three years; but afterwards it was agreed that it should continue until such time as should be mutually [283] agreed on by the parties. Mrs. Kate N. Stark died in August, 1916, at which time the contract was in full force and effect; and up to the time of her death J. C. Stark had performed all obligations assumed by him. In 1 R. C. L., at sec. 1, p. 653, it is said: “It is difficult to frame a definition of the term advancements with accuracy and precision, inasmuch as it is' used in both a popular and a technical sense. It has been enlarged in many instances to meet the apparent justice of particular cases and restricted in-other instances for the same reason; moreover the statutory enactments of various jurisdictions have to some extent changed its common law meaning. Notwithstanding the difficulty of framing a definition which will cover every case, there are certain well determined and essential elements that are usually accepted as being necessary to-the existence of an advancement. In its strictest technical sense an advancement is a perfect and irrevocable gift, not required by law, made by a parent during his lifetime to his child, with the intention on the part of the donor that such gift shall represent a part or the whole of the portion of the donor’s estate that the donee would be entitled to on the death of the donor intestate.” See also, the definition of advancement given in Darne’s Ex’r v. Lloyd, 82 Va. 859, 5 S. E. 87, 3 Am. St. Rep. 123, and in notes to Code, sec. 2561. In general, two elements are essential to constitute an advancement, a gift by the parent to the child and the intention by the donor that the gift shall be an advancement. But the latter may be inferred from the former. Nevertheless, a gift, in contradistinction to a transfer for valuable consideration, is indispensable. Here-, the agreement was for the mutual convenience of the parties. The son contributed his time and services in return for contemplated profits, the fruits of his labor, aided by the mother’s capital, for the use of which he was to pay its earning value in interest at monthly intervals. But in [284] the event of his surviving his mother during the continuance of the business, the capital was to be his property; but if she survived him, it was to remain her property, and the profits alone, if. any, were to go to his estate. It may be that, in the former contingency, the stipulations of the contract were more favorable to the son; yet, in the latter, they were not more so than in any other case in which a person conducted a mercantile business on borrowed capital. It is not essential, however, for us, in construing this contract, to attempt to balance benefits. There is no suggestion of unfairness in the transaction, or that the parties were not competent to contract. Indeed, all the elements of a contract executory were present: “A mutual agreement between * * * competent parties for a valuable consideration, touching a lawful subject matter.” 4 Minor’s Inst., Pt. I, p. 16. The learned author, at the same page, observes: The amount of the consideration, so it be appreciable, is immaterial, save only that, if grossly' inadequate, it may tend to prove a fraud.” Our conclusion on this branch if the case is, that the fact of a gift from the mother to the son is not established. Moreover, it was agreed that on the trial of the cause the court should consider an agreed statement of facts as duly proven, with the right to object to any fact as competent evidence. The statement, in part, is as follows: “* * * Fifth. That, if T. H. Brown were called as a witness he would testify that at the time of signing the paper extending the terms of said contract, which paper was witnessed by him, he would say, at the time of the execution of such paper Kate N. Stark stated to him, at her death the said $4,000 invested in said business should constitute no part of her estate, and that nothing was said as to the distribution of her other estate, nor was anything said as to whether J. Clifford Stark was or was not to account for four thous- and dollars invested in the firm of Brown & Stark in the distribution of her estate.” [285] This statement of Mrs. Stark is substantially a repetition of one of the stipulations of the contract, and shows that, in the event of her son surviving her, she did not consider the four thousand dollars part of her estate, or an advancement to him, which necessarily would result were it required to be brought into hotchpot. So that both of the essential constituents of an advancement are wanting. For these reasons we are of opinion to affirm the decree. Affirmed.