Fellows v. Little

Nesmith, J. The material question is, whether, from the facts presented before us, the judge of probate for the county can be sustained in finding the charges made against the appellant by his father on his book, as competent evidence of an advancement made to him in anticipation of the son’s share of his father’s estate. The question is to be determined upon a fair construction of our statute upon this subject, and upon the usages had elsewhere in cases where a similar statute law prevails. Section 12 of chap. 176 Compiled Laws provides : That no personal property delivered shall be deemed an advancement, unless proved to be such by an acknowledgment in writing signed by the party receiving it, or by some charge or memorandum, thereof in writing made by the deceased or his order, or unless delivered expressly as an advancement in the presence of two witnesses who were requested to take notice thereof.” The statute defines three distinct modes of making proof of an advancement. The administrator of the estate of the deceased relies upon the second mode as indicated by the statute. The charges on the father’s book against the appellant were made prior to the adoption of the Revised Statutes, and may therefore be properly controlled by the provisions of the 5th section of the act of 1822, as revised by the Legislature of 1829, being in force when all the charges against the appellant were made. Laws of 1830, page 353. Rich v. Flanders, 39 N. H. 304. The charges on the same book against some other children of the deceased were made subsequent to the passage of the Revised Statutes. Although the act of 1822 before referred to might perhaps admit evidence of advancements in other modes, and different from those indicated by our present statute, as being more comprehensive in its terms; yet, to avoid confusion, and because we think the same construction may be justly applied to that part of both statutes, explanatory of this case, we propose to test the case before us, by excluding any and all testimony, not deemed admissible by the law now in force which is applicable to the state of facts before us. An advancement is briefly defined to be a free and irrevocable gift by a parent in his lifetime to his child on account of such child’s share of the estate after the decease of the parent dying intestate. No particular form of words is required by the statute to constitute an advancement, but the articles or money delivered must be so charged as not necessarily to imply the existence of a debt or an absolute gift, biit rather to show the intention of the parent to have delivered the property, and made the charges expressly as advancements towards the child’s future share of his father’s estate. Such we understand to be the fair, legitimate meaning of an advancement as interpreted by our statute law. The memorandum of the property wherever and however made, the entries of the charges of property or money upon the book, must not show a debt to be collected or to be paid in presentí, nor an absolute unconditional gift, never more to be considered, but must be so entered as justly to convey the idea or knowledge to the parties interested, that there is intended to be a future adjustment and apportionment of the same charges or entries, upon the [36] settlement of the estate, as an advancement towards the final share of each child in the parent’s estate. In the case before us, the father was Hezekiah Fellows, Esq., late of Webster, deceased. He kept a store for many years, and, of course, kept books, where his mercantile accounts and transactions were entered. The appellant, John Fellows, was the son. His father gave him an education, qualifying him for the medical profession. Mr. Fellows died intestate, leaving a widow and three other children. In the back part of a small memorandum book, which purported to contain entries showing the accounts of Esquire Fellows as justice of the peace, and as town clerk, administrator of some estates, and also of some few charges and settlements against his neighbors, were tacked in and fastened some sheets of paper, containing memoranda or charges in writing, of cash and other articles purporting to be delivered to each of his four children. The charges to the appellant commenced in 1830, and terminated in 1842. He was 15 years of age when they were commenced, and 27 years old when they terminated. The amount of the father’s accounts against the appellant, up to July 1842, was $961.93. Then for five years there were no charges against the son. In 1847 we again find some goods charged to the son on his father’s regular store books of accounts. Similar charges were made in 1851, ’55, ’56 and ’57, amounting in the agrégate to $73.84. More than half of the amounts against said John were made while he was a minor. The aforesaid sheets of paper also contained charges against his daughter Catherine, of sundry articles delivered while she was a minor in 1835, 6 and 7, amounting to something less than $200; also to his son George, sundry charges of money and property, the whole amounting to $452.00, commencing in 1845, when he was 16 years old, and terminating in 1860, when he was 36. No charges were made against his other daughter, Salome, until after her marriage in 1852, being then 25 years of age. During the term of five years after, and under her original maiden name of Salome Fellows, a few articles were entered upon the back of appellant’s account, amounting in the whole to about $70.00. The abbreviation "Dr.” or "Zb” follow the names of each of the three oldest children, but not the name of Salome. From the facts of the case, it appears that the accounts against the several children were 30 years in accumulating. Nothing exists on the face of either to indicate any credit or settlement. The appellant’s account far exceeded either, or all the others, in amount. The amount of the appellant’s account was more than one-fourth of the whole estate of the deceased, after deducting the widow’s share. The memorandum book was a part of the case. From its inspection, and a consideration of the aforesaid facts, we derive the following probable inferences or conclusions: 1. The aforesaid charges are not regarded as Evidence of absolute gifts. If such had been the intention of the deceased, he would not have entered the charges with particularity, even if he entered them at all; nor would he probably have placed the common mark or abbreviation of indebtedness against either child’s name. [37] 2. The accounts do not bear on their face the internal evidence of present indebtedness. They are not found upon the regular book of accounts of the deceased. They are not posted or transferred to' any ledger, as the other accounts of the deceased appear to have been. Nearly half of the whole amount is charged to part of the children while minors, and without ability to pay. There is nothing about the accounts tending to show that the deceased made any efforts to collect any portion of either account, after his children became of. age. The fact that they were originally entered on separate or distinct pieces of paper, shows that the deceased could not have designed the accounts for collection, nor with the expectation of payment. On the contrary, the entries, as exhibited on the book of the intestate, are made in such a manner, and under such circumstances, as to exclude the idea that they were intended either as absolute donations, or as a present indebtedness, and they do carry with them strong intrinsic evidence that they were intended as advancements, and to be so treated upon the final settlement of his estate. In making these charges, it appears to us that it was the purpose of the intelligent father, knowing his means, and in the exercise of a wise forecast, to so arrange his accounts as to enable his children that might survive him to obtain a final equal distribution of his estate. This motive appears apparent to us from the fact that he prescribed a limit to the account of the appellant, after it had accumulated to §961.93, and that, from that period, whatever property the appellant had was charged to him in such a manner as to clearly indicate the expectation that he should pay the second book account as a just debt. From this conduct of the father towards the son, we infer that he, upon a view of his own comparative means, and with a due regard to his ability to assist his other children, then desisted from making further advances to his son John, and for the special reasori that he had already delivered to him what would prove to be equal, or more than equal to John’s full share of his estate. Our results on this question accord with the decision of the courts in Vermont, in cases involving a very similar state of facts. Brown v. Brown, 16 Vt. 205; Weatherhead v. Field, 26 Vt. 665; also Bulkeley v. Noble, 2 Pick. 340. The rule laid down in Hollister v. Attmore, 5 Jones Eq. Rep. N. C. 373, appears to be not unjust. Where things given to his children by an intestate parent were such, as were needed on their starting in life, and were calculated to aid and advance them, there being nothing to show they were not intended as advancements, it was held they must be so construed. Wagner's Appeal, 38 Penn. (2 Wright’s Rep.) 122. Generally, equality is equity among heirs, and the doctrine of advancements has for its object the furtherance of this end. The intention of the parent is to govern and to be carried out. Miller's Appeal, 31 Penn. 337. Judge Lewis remarks truly in that case, that no person knows so well as a parent how equity and equality may be best effected. In many families a judicious discrimination in favor of one child, or against another, may work the best equity. The presumption is, that the parent makes these expenditures in the discharge of his parental du [38] ties, and that all his children are treated with equality in this respect. The taste, talents and constitution of one child may be of such a nature as to induce the parent to make for him a larger proportion of his property by anticipation, to advance him in the art or profession for -’which he evinces peculiar qualifications. This course might greatly promote his interest and happiness, while similar benefits may be ultimately secured to his other children by giving them in some other form their share of the estate. Questions of advancement are always questions of intention, and the difficulties in solving them are generally found in the kind of evidence by which such intention is to be proved. In some cases it has been considered that this intention if not expressed shall be' inferred as matter of law. Where the law, as in Massachusetts, requires this inténtion to be expressed by the intestate in writing, it has been held that no subsequent parol declarations will control the original intentions of the party, as represented by charges on books or entries upon memoranda, &c. Hatch v. Straight, 3 Conn. 31; Partridge v. Havens, 10 Paige Chan. 618; Johnson v. Belden, 20 Conn. 322; Osgood v. Breed, 17 Mass. 359, and the two aforesaid cases in Vt. Reports; Barton v. Rice, 22 Pick. 508. Our conclusion, therefore, is that the charges, as found in the appendix of the book of the intestate, are justly to be regarded as proper evidence of advancements made to the children of the deceased, equal to their several respective amounts; and that no verbal evidence can be received showing subsequent parol declarations of the intestate, tending to control the evidence arising from the original entries in the book itself. Therefore, upon consideration of the whole case, we affirm the decree or judgment of the court of probate.