West v. Beck

Deemer, J. Appellant’s contention is — First, that there is not sufficient proof of the advancements ■charged against the share of J. A. Beck to justify their •allowance; second, that, even if such advancements are shown, they cannot be used to reduce Ms share of the real estate of which the ancestor died seized. [522] 1 2 [521] It appears from the testimony that appellant repeatedly stated, not only to his brothers and sisters; Ibut to others, that he had received-six hundred and [522] seventy-five dollars on his share of the estate; that he knew his promissory notes were among his father’s papers; and that he did not have as mnch interest in the land as the others, or as mnch to say about it. He also wrote his mo ther, in the year 1892, as follows: “I want the interest I have in the home place to pay the six hundred dollars back, and then what is left I want.” It further appears that most of the money furnished tó appellant by the deceased was borrowed upon notes signed by the father and son, the former as surety aná the latter as principal, and that these notes were paid by the father and found among his papers after his death. The testimony also shows that when the deceased paid these notes he declared that “he would keep them to show that J. A. Beck had had that much.” Appellant insists that these declarations of the father are inadmissible, and that a debt cannot be changed to an advancement by statements of this character. It will be noticed that these declarations were made by the father at the time he made the advancement to the son, and, although made to a third person, they are admissible as a part of the res gestae. Declarations of the father made after the debt was cre,-; ated would not be admissible to turn a debt into an advancement, but the statements relied upon in this case were made at the time the money was furnished,' and are clearly competent. Now, advancement is an irrevocable gift made by a parent to a child in anticipation of such child’s future share of the estate; and when a father pays off a debt owed by his son to a third person, the law presumes the money so paid is an advancement, unless it be shown that it was not so intended. Reynolds’ Adm’r v. Reynolds, 18 S. W. Rep. (Ky.) 517; Dilley v. Love, 61 Md. 603. Applying these rules to the testimony before set out, there can be no question as to the correctness of the conclusioxi [523] that the deceased made the advancement found by the lower court. 3 II. Turning to the second contention of appellant, we find this statutory provision: “Property given by an intestate by way of advancement to an heir, shall be considered part of the estate so far as regards the division and distribution thereof, and shall be taken by such heir towards Ms share of the estate at what it would now be worth if in the condition in which it was so given to him.” Code 1873, section 2459. No distinction seems tobe drawn in this section between advance^ments of real and personal property. The word ' “property” is used. This is broad enough to cover every description of property; and there is nothing to indicate that the legislature intended advancements of personal property to be taken from the.personal, and advancements of real property from the real estate. Indeed, a contrary intention is apparent. And the reason is obvious. In this state real and personal property descend in equal proportions to the heim They take the same proportion of one as of the other. And as equality among the heirs is always considered equity, it is manifest that advancements of money may be offset against an heir’s share of real estate. The decree is right, and it is affirmed.