Harrison's v. Harrison's

Campbell, C. J., delivered the opinion of the court. George S. Harnsberger, administrator c. t. a. of Reuben N. Harrison, deceased, filed his bill in the circuit court, alleging that Reuben N. Harrison died testate on the 3rd day of January, 1933'; that his will was duly probated before the clerk of the Circuit Court of Rockingham county, and that complainant duly qualified as administrator with the will annexed; that George H. Harrison, father of complainant’s decedent, died testate on March 6, 1932, and his will dated the 25th day of September, 1929, was duly probated before the clerk of the Circuit Court of Shenandoah county; that under and by virtue of the terms of his will, the testator gave and bequeathed: (1) To his wife, Josephine Harrison, the sum of $20,000 and his automobile and 1,100 shares of Miller Train Control stock; (2) To his son, Thomas M. Harrison, the sum of $10,000; and the residue of his estate — 226 — to his son Reuben N. Harrison; that George H. Harrison and his wife, Josephine, by deed dated December 29, 1931, conveyed to Thomas M. Harrison for a stated consideration of $10.00, and subject to the use and benefit of the grantor for the remainder of his life, a tract or parcel of land containing 189.15 acres, situated in Rockingham county. The bill then alleges that the conveyance of the land to Thomas M. Harrison was intended to be, and was, an advancement in satisfaction of the $10,000 legacy bequeathed to Thomas M. Harrison. To this bill appellants filed their answer denying the averment that the conveyance of the real estate was an advancement in satisfaction of the legacy of $10,000, and alleged that the conveyance made by George H. Harrison was intended as a gift in addition to the legacy. The cause was heard upon the bill, answer and depositions of witnesses, and on the 13th day of November, 1937, the chancellor decreed, “that the conveyance by George H. Harrison and his wife to Thomas M. Harrison by deed dated December 29, 1931, was an advancement by the said George H. Harrison to the said Thomas M. Harrison to the extent of the value of the land, to-wit: $9,500 as of March 6, 1932, * * * .” From that decree this appeal was allowed. In Minor on Real Property (2d Ed.), section 934, we find this accepted definition of an advancement: “An advancement is a gift by a parent to a child or descendant, for the purpose of advancing him in life.” The answer to the question of whether or not the conveyance by the father to the son was an advancement or a gift is found in a proper construction of section 5237 of the Code of Virginia, which reads as follows: “A provision for or advancement to any person shall be deemed a satisfaction in whole or in part of a devise or bequest to such person, contained in a previous will, if it would be so deemed in case the devisee or legatee were the child of the testator; and whether he be a child or not, it shall be so deemed in all cases in which it shall appear from parol or other evidence to have been so intended.” — 227 — It is the contention of appellees that at common law there was a presumption that the conveyance was intended as an ademption of the legacy denoted in the will of the father, and that the statute merely declares this rule and extends it. That contention is controverted by appellants, who insist that no such presumption exists in Virginia, and that the burden is upon appellees to show the intention of the father by a preponderance of the evidence. Prior to the enactment of section 5237 in its present form, this court had, in several decisions, enunciated the rule applicable to the question involved. In Jones v. Mason, 5 Rand. (26 Va.) 577, 16 Am. Dec. 761, Judge Carr quoted with approval Lord Eldon’s statement in Trimmer v. Bayne, 7 Ves. 508. There we read: “The rule is settled, that where a parent or person in loco parentis gives a legacy as a portion, and afterwards, upon marriage or any other occasion calling for it, advances in the nature of a portion to this child, this will amount to an ademption of the gift by the will, and this court will presume he meant to satisfy one by the other.” In Moore v. Hilton, 12 Leigh (39 Va.) 1, Judge Tucker said: “Now, an advancement to a child, made subsequent to a will, is to be taken as a satisfaction pro toto or pro tanto according to its amount.” In the year 1841, this court handed down the decision in the notable case of Hansbrough’s Ex’rs v. Hooe, 12 Leigh (39 Va.) 316, 37 Am. Dec. 659. Judge Cabell, delivering the opinion for the court, held that the rule is well settled that when a parent, or a person in loco parentis, gives a legacy as a portion, and afterwards, upon any occasion calling for it, advances in the nature of a portion to that child, that will amount to an ademption of the gift by the will and the presumption is that he meant to satisfy the one by the other. Following the decision in the Hansbrough Case, supra, came the revision of the Code in the year 1849. In dealing with the former provisions relative to advancements and satisfaction, the revisors proposed this section: “And no provision for, or advancement to, a child — 228 — or other person, hereafter made, shall be deemed a satisfaction in whole or in part of a devise or bequest to such child or other person, contained in a previous will, unless it plainly appears by a writing signed by the testator that it was so intended.” That the revisors sought to change the rule of presumption as it theretofore existed, is manifest when we read their report to the legislature. In the report, this is said: “The rule seems to be well established, that where a parent, or one standing in loco parentis, gives a legacy to a child, and afterwards makes a provision for or an advancement to the child, it shall be presumed that the subsequent provision or advancement was intended as a satisfaction of that made in the will. And in the case of Hansbrough v. Hooe, 12 Leigh (39 Va.) 316, 37 Am. Dec. 659, the Court of Appeals applied the same prescription to a devise of real estate. ‘The ground of this doctrine seems to be, that every such legacy is to be presumed as intended by the testator to be a portion for the child or grandchild whether called so or not; and that afterwards, if he advances the same sum, upon the child’s marriage or other occasion, he does it to accomplish his original object, as a portion.’ 2 Story’s Equity, sec. 1112. The application of this doctrine has been the fruitful source of perplexing litigation and has been the parent of strange results.” However, when the Code of 1849 was adopted by the legislature, the proposal of the revisors was rejected and section 12 of chapter 122, Title 33, was enacted. That section, unchanged, appears in the Codes of 1860, chapter 122, section 12,1873,1887, section 2522, and 1919, section 5237, and is now known as section 5237, Michie’s Code. Following the rejection by the legislature of the suggestion of the revisors that the rule be changed, this court, in Watkins v. Young, 31 Gratt. (72 Va.) 84; Gregory v. Winston’s Adm’r, 23 Gratt. (64 Va.) 102; and McDearman v. Hodnett, 83 Va. 281, 2 S. E. 643, has held that whenever a father makes to a child a transfer of property, either real or personal, or whenever he furnishes the purchase — 229 — price of property, title to which is taken in the name of the child, a presumption of advancement arises. In commenting upon the common law presumption of advancements, Professor Minor has this to say: “Neither law nor good sense admits the supposition in general that a man designs to make a double provision for the same object, whether it be a child’s portion or any other purpose distinctly ascertained. Hence, if a parent, or one standing in loco parentis, gives a legacy to a child (which is always prima facie supposed to be intended as a portion), and afterwards the testator makes provision for the same child by way of advancement in his lifetime, the legacy is for the most part adeemed. (Citations.) And this common law presumption, which in the case of a parent was natural, is now by statute extended as between all persons, whether children of the testator or not; and parol proof is admitted of the testator’s intention to adeem or otherwise by the subsequent advancement. (V. C. 1873, ch. 118, sec. 12; V. C. 1887, ch. 112, sec. 2522.)” Ill Minor’s Institutes, pp. 609, 610. In 1 Wills and Administration, section 301, Judge Harrison, after noting that the legislature rejected the proposal of the revisors of the Code of 1849, to abolish the doctrine of presumed satisfaction, was of opinion that the legislature by enacting the statute extended the doctrine and made its application more definite. Though we concede the force of the two Kentucky cases relied upon, yet, in our opinion, the contention of appellants is, under the authorities cited, untenable. While we thus conclude that the doctrine of presumed satisfaction is applicable, there is no doubt that this presumed intention of satisfaction is, under the express terms of the statute, liable to be repelled by circumstantial evidence. Rowe v. Rowe, 144 Va. 816, 130 S. E. 771. It, therefore, becomes necessary to determine what effect is to be given to the proof adduced by the appellants. In our opinion the learned trial court, in a written opinion, has correctly concluded that the proof upon the part of the — 230 — appellants does not meet the requirements of the law. In the opinion it is said: “There is no evidence whatever of any declaration of intention by George H. Harrison as to the conveyance of this farm to his son. The deed is in form a deed of bargain and sale and contains nothing to reveal the intention with which it was made. Thomas Harrison does not tell what took place when this deed was executed and delivered, although he was present with his father at the time. His mother testified that at Mr. Harrison’s request she wrote Thomas Harrison that his father wanted to talk to him about the Brock farm; that he came to see his father, but she did not hear their conversation. Mr. Bird, the cashier of the bank who had drafted Mr. Harrison’s will, took the acknowledgment of the deed in Mr. Harrison’s room. This is all that appears in the evidence upon that vital subject. “Trotman v. Trotman, supra (148 Va. 860, 139 S. E. 490), cited by defendant for the similarity of its facts to this case, differs in this respect; it showed positive declaration of the intention. ■ “To rebut the presumption that this deed was intended to satisfy the legacy, the defendant relies entirely upon evidence of circumstances to prove the existence of a motive for a contrary intention. “Summarized, the objectives of this evidence are to prove: That the affection between Thomas and his father was warmer than that felt for the other two sons; that William had demonstrated his business incapacity and Reuben was a hopeless invalid; that William and Reuben had received a large sum of money from their father and in addition, he had been obliged to spend much money for their benefit, but that Thomas had been paid nothing and little had been expended for him; that while the money received by William and Reuben was partly in payment for property inherited from their mother, yet they exacted more than their share and more than their property was worth, and that their father resented this hard bargain; that Thomas had served his father from boyhood, without any — 231 — regular compensation, and continued to assist him in business and had and deserved his father’s complete confidence; and that Thomas was married and had a child, toward whom the grandfather showed marked affection, while William was childless and Reuben was unmarried. “There is contradiction of this evidence in some particulars. The actions of George H. Harrison, after the payment to William and Reuben, do not indicate that he harbored any resentment toward them or that his affection for them had lessened. This is manifested by his two wills; in the first of which he bequeathed William $15,000 and requested Thomas and William to take care of Reuben; in the last, he made Reuben his residuary beneficiary. In addition to this, he paid William’s debts. There is, also, convincing evidence of his father’s continued solicitude and affection for Reuben. “However, it cannot be gainsaid that this evidence discloses a situation which might well have moved George H. Harrison to give the farm to Thomas in addition to the legacy for him in the will. In seeking to discover the intention, this evidence has been carefully weighed. For, upon a question of intention, motive is an important inquiry. The motive, however, is not the object of the search. Moreover, motive is difficult to detect with certainty; often we know the intention without the motive. “But the decisive factor in evaluating this evidence is the fact that with this situation known to him, George H. Harrison fixed the share of his son Thomas at $10,000. This he did in solemn and deliberate form, when, unknown to his family, he executed his last will and left it with his banker for safekeeping. There is no uncertainty as to what his intention was when that will was executed. Experience teaches us that men do not lightly change their minds upon such a matter, just as they have not lightly made them up upon it. Therefore the rule that the intention is presumed to continue unchanged, unless there is evidence to the contrary sufficient to convince us that it has been changed. While it is of course possible that George H. Harrison may — 232 — have changed his mind after his will was executed, moved by the circumstances brought out in this evidence, such a conclusion appears to be more uncertain than that his mind remained unchanged. We know, by the will, what his mind was under those same circumstances. “Nor does the evidence show any change of circumstances, such that it might cause a change of intention, in the two years that elapsed between the making of the will and the execution of the deed. The only change of any moment in the affairs of George H. Harrison, during that period, was the liquidation of William’s debts. He paid William out of debt and took over his property. Since the value of the property was less than the debts paid, this resulted in a reduction in the value of Mr. Harrison’s estate. But it is evident that it was not reduced to the extent that it impaired the legacy of Thomas. The only effect it would have on the disposition made by the will would be to reduce Reuben’s residuum. Thus, there is nothing apparent, in this incident, to cause George H. Harrison to change his mind as to the portion he had provided for Thomas in his will. “To interpolate. It has been testified, and repeated in argument, that such was the value of George H. Harrison’s estate at the time he made his last will, that the amount of the legacies given to Thomas and his mother showed that the testator intended them to have the entire estate; and that the residuary provision for Reuben, since there would have been little or no residuum after the payment of these legacies, was but a gesture of courtesy toward him. But this statement cannot be reconciled with the evidence, if comparison is made between the amount of the estate shown by the appraisement, and its value before it was reduced by the payment of William’s debts. “The rebuttal evidence, therefore, appears insufficient to overcome the presumption that it was George Harrison’s intention to satisfy, by the conveyance, the legacy he had made for his son Thomas in the will. The prima fade case of the complainant has withstood the attack made — 233 — upon it by the defendants. It is the stronger upon the proof.” The decree of the lower court must be affirmed. Affirmed.