Nelson v. Wyan

Scott, Judge, delivered the opinion of the court. 1. This was a bill in chancery, commenced under the former system of practice. From the contents of the bill, it may be gathered that its chief aim was to obtain a partition of the real estate of Jacob Wyan, deceased, among his heirs. Such being its end, we are surprised that the plaintiffs in error should per [351] sist in the statement, that the most valuable portions of the:real estate had been sold, under the authority of the will, by thé,.ex-ecutors. It may be, and is probable, that the case has altogether outgrown the pleadings, and that it is now in a very different situation from that which it occupied at its beginning. Be that as it may, wo will proceed to give our opinion on the point in the cause as we gather it from the objections to report of the commissioner, spread upon the record ; and we must be permitted to say, that we are utterly at a loss to conceive on what ground the plaintiffs in error base their claim to the interest for which they contend. We entirely approve the principle of the case of White’s heirs v. White’s heirs, (3 Dana, 378,) as it is understood by us ; and if there are any facts in the present case which would render it applicable, it should be enforced. In that case, an estate was to be distributed equally among heirs. The administrator had in his hands a sum of money for distribution. A portion of the heirs received their share of it, and the balance remained undistributed, bearing interest. Afterwards, when the balance was to be apportioned out, they who had received their shares maintained that the heirs who had received nothing should be paid out of the principal and interest, and thereby leave a balance for another distribution ; but the court refused this, and held, that, inasmuch as a portion of the heirs had received their shares from the administrator, and the shares of the rest remained in his hands, making interest, it was right that they should have the interest their shares had made, and allowed them their portions and the interest that had accumulated on them from the time a part of the heirs were first paid. The justice of this course commends itself to every one. But that is not this case, and has nothing to do with it. There, the money was paid by the administrator, not advanced by the father. It was money and not barren and unproductive lands or lots. The amounts here sought indirectly to be charged, with interest, are advancements made by the testator, and those advancements made mostly in lands which it does not appear were352 productive, and which, it is maintained, though they be unproductive, does not alter the case. The law with respect to interest on legacies has no application here. As we understand the matter, there is no controversy as to the interest allowed for the purpose of equalizing the payments actually made in cash. It is only to so much of the report as allowed interest in the excess of value in real estate received by one heir more than another, of which complaint is made. 2. The rule is, that advancements do not bear interest. (Osgood v. Brook’s heirs, 17 Mass. 356. Hall & wife v. Davis, 3 Pick. 450.) It would work gross injustice to make them do so. A parent advances to a child a thousand dollars ; twenty years after, he advances to another child, who> was then unborn: now, this rule of making advancements bear interest would require the parent, in order to equalize his bounty, to give to the child last advanced, as our rate of interest is now, ten per cent., three thousand dollars. He must have his thousand dollars by way of advancement, and his twenty years’ interest thereon, making two thousand dollars more, in order to make him equal with the child first advanced. An advancement is at the risk of the child advanced, from the time it is made. If it is lost, or is destroyed, or perishes, it is at the risk of the child advanced. It is his loss, and he is chargeable with the value of it, at the time the advancement is made, and with no more. So, if the property or money advanced is increased — if it becomes more valuable; as the child would not have been credited by it had it perished, so he shall not be chargeable with any profits it may make. So, if there was any color for the allowance of interest made by the commissioner in calculating the excess in value of real estate received by one heir more than another, the assumption of July, 1842, as the time at which it should begin to be computed, was entirely gratuitous. A father proposes advancing his children equally ; he gives one of them, on the attainment of majority, $1000; five years after, another of his children becomes of age : now, in order to make his advancement equal to that of the child first provided for, must he not [353] only receive a thousand dollars, but interest on that sum from the time the first advancement was made ? These advancements are gifts; they are not debts which are discharged. If I give one child one thousand dollars, I do not owe the like sum to another, with interest, until I see fit to pay it. If I give one man a thousand dollars one year, and five years thereafter give a thousand dollars to another man, have I not been equally liberal to both of those men ? The natural sentiment of justice in men harmonizes with these views. We cannot, in this instance, suppose that the testator desired any thing else than to conform his action to that sense of justice planted in all mankind. The words of his will show that he meant to be equally kind to all his children, except as stated, and why should those words receive a construction which is at war with the notions of justice usually entertained by men, and make him do that very thing which his language was designed to guard against ? It is strange that the idea should occur to any one, that, because the testator in his will stated the sums at whieh the lands given to some of his children during his lifetime should be estimated, in making a distribution of his estate, that therefore we should, against the truth, take it that such a sum, in money, was actually advanced. But if such had been the fact, we know of no principle which would warrant us in allowing the ether heirs interest on sums equal to those advanced, until they received their distributive shares. The estate consisted, mostly, of real estate; the advancements were mostly made in real estate; whether it was improved or not, does not appear. Now those not advanced, or not advanced with a sum equal to others, might have had their portions of the real estate assigned to them immediately after the death of their ancestor. Why did they wait 2 If the estate given by way of advancement was unproductive, it would be great injustice to allow the interest claimed by some of the heirs. A testator may make such a will; he may require that his estate should be distributed in the mode contended for by the plaintiffs in error ; but there is nothing in the terms of the will, whose construction is involved [354] in the case under consideration, which requires that such a claim should be allowed. Judge Ryland concurring, the judgment will be affirmed; Judge Leonard not sitting.'