Kemp v. Turman

Cook, J., delivered the opinion of the. court. This case was decided by the chancellor upon full proof,, resolving everything involved in the controversy against appellant. One of the questions involved- — in truth, the main question — was whether money given by the father of both parties to appellee is to be treated as an advancement, and appellant contends that it must be so regarded, unless the evidence clearly shows that such was not the intention of the parties at the time.the money was paid. In other words it is insisted that when a father gives, money to a son it will be presumed that it was given by way of an advancement unless the contrary appears from a clear preponderance of the evidence. The universal rule seems to be that, when money is given by a father to a son for the purpose of enabling the son to purchase real estate, it will be presumed that the money so given was intended as an advancement. Many cases decided by this court are cited in support of the doctrine, but our attention has not been called to any case, nor has our research discovered any case decided by this court, which holds that the mere gift of money by a fathér to a son will be presumed to have been intended as an advancement. [506] Gee v. Gee, 32 Miss. 190; Harvey v. Ledbetter, 48 Miss. 95, and Wilson v. Beauchamp, 50 Miss. 24, are cited in the brief of appellant’s solicitor as deciding that “money, or property, given the child during the intestate’s lifetime, ,is presumed to be advancement. ’ ’ In Gee v. Gee, supra, it is held that when land is purchased by a father in the name of his son, it will be presumed that an advancement was intended. In Harvey v. Ledbetter, supra, the point under review was not involved; besides the title to real estate, and not mere money, was the subject of that decision. In Wilson v. Beauchamp, supra, it is held that where the husband purchases land with his own money, and has the deed made to his wife, if she acquires any right in the land, it is by way of advancement, and this will depend upon the intention of the parties at the time of the transaction. It is of interest to note the rule announced by the court in the last-mentioned case in regard to the power of the appellate court to reverse the trial court where there is a conflict in.the evidence as follows: “Where there is a conflict in the 'evidence in a case depending on facts, where no legal questions are involved, as in the case under consideration and where the mind cannot repose with entire confidence and certainly upon a conclusion in favor of either party, the action of the court below will not be disturbed. It may be observed here that in the present case there was a sharp conflict in the evidence concerning the intention of the parties at the time the money was given by the father to the son; and if it be the law that such a transaction will be presumed to have been by way of advancement, the chancellor must have reached the conclusion that the presumption was overcome by the evidence, and we are not able to say, with the entire confidence, that he was wrong in his conclusion. There is some conflict in the authorities as to whether gifts of money made to a son during the life of an intestate father should [507] be presumptively by way of advancement, and while it is undoubtedly true that numerically the weight is in the affirmative, it is not clear that the minority decisions are not based upon the sounder reasoning. However, the evidence in the present case fully warranted the finding that this feature of the controversy was of no practical importance. Stated conservatively, there was abundant evidence to ■support the conclusion that appellant received much more from her father during his lifetime than the amount received by appellee. Affirmed.