Arthur v. Arthur

143 Wis. 126 | Wis. | 1910

KerwiN, J.

The question in this case is whether the transfer of $5,000 worth of property to-each of the three sons of John Arthur — Samuel, Charles, and Harry — -amounted to an advancement to each of them which should be charged against him in the settlement of the estate of his father. The court below in a lengthy and able opinion held that the sums given were advancements and not gifts; therefore that each should be charged with the amount so advanced in the settlement of John Arthur’s estate. The grounds of decision of the court below are, in effect, that the evidence tends to show that John Arthur desired to distribute his property equally, and the court recites the certificate set out in the findings, made at least four months after the transfers, to the effect that John Arthur had made advancements to each of his four sons of $5,000; that, independent of the statute regarding proof of advancements (sec. 3959, Stats. 1898), a presumption is raised upon the facts that the gifts were advancements, and that such presumption is controlling unless rebutted by evidence; and that but for sec. 3959, Stats. (1898), he would hold that the gifts to Charles, Samuel, and Harry were advancements under the evidence. The court below then proceeds to discuss sec. 3959, Stats. (1898), and the effect of the certificate referred to and put in evidence, and argues that the statute does not require the charge to be made at the time of making the gifts; that, since the facts and circumstances show that the gifts were intended as advancements, there is nothing in the language of the statute or in reason why the parent afterwards may not in writing declare the gifts to have been advancements, and thereby comply with the statute. Pomeroy v. Pomeroy, 93 Wis. 262, 67 N. W. 430, and Ludington v. Patton, 121 Wis. 649, 99 N. W. 614, are referred to and held not controlling.

It may be that, in tbe absence of a statute prescribing tbe manner of proving advancements, tbe proof would have been sufficient to support tbe findings and judgment below. But in tbe face of our statute (sec. 3959) we cannot find that it is. Tbe assignments of tbe $5,000 interest to eacb of tbe three sons bear upon tbeir face no evidence that they were advancements. True, tbe age of John Arthur when tbe assignments were made, tbe fact that tbe property assigned amounted to more than half of bis estate, and that be was. averse to making a will, and perhaps some other facts and circumstances appearing in evidence, might be sufficient to raise a presumption that tbe gifts were advancements without tbe certificate of October 28, 1905, were it not for tbe statute referred to. But in face of tbe statute we fail to find sufficient proof, unless tbe certificate was admissible in evidence. Tbe statute (sec. 3959) provides:

“All gifts and grants shall be deemed to have been made in advancement if they are expressed in tbe gift or grant to be so made or if charged in writing by tbe intestate as an advancement or acknowledged in writing as such by tbe child or other descendant. . . .”

This statute at least by implication excludes other proof of advancement and provides for proving an advancement. Bulkeley v. Noble, 2 Pick. 337; Barton v. Rice, 22 Pick. 508. In Massachusetts tbe statute is tbe same as our own, and in Barton v. Rice, supra, tbe court said:

“Tbe statute does not expressly declare that an advancement shall not be proved in any other manner, but that undoubtedly is tbe meaning of tbe statute.”

And in Bigelow v. Poole, 10 Gray, 104, 105, it is said:

“It is tbe settled law of this commonwealth that an advancement, whether of real or personal property, made by an intestate to bis child or other descendant, must be proved by the evidence prescribed by our statutes, and by no other.”

Tbe construction placed upon tbe statute by tbe Massachusetts court has been adopted by this court. In Pomeroy v. Pomeroy, 93 Wis. 262, at page 266 (67 N. W. 430, at page 431), tbis court said:

“It follows that the construction given to this statute by the Massachusetts court became, on its adoption here, a part of the law of this state. We therefore hold that parol evidence is inadmissible to prove an advancement; that, though the statute does not expressly declare that an advancement shall not be proved in any other manner than that indicated therein, such is undoubtedly its meaning; that, by prescribing a particular manner for proving an advancement, by implication all other evidence is excluded.”

To the same effect is Ludington v. Patton, 121 Wis. 649, 662, 99 N. W. 614.

Since the evidence independent of the certificate was not •sufficient to establish that the transfers were advancements, the question arises whether the certificate was competent. This certificate was made some four months after all the transfers were completed and delivered, and it is insisted by respondent that it was competent as tending to show the intention of John Arthur and in harmony with the statute, because the statute does not provide when the charge shall be made. The statute, however, has been construed by this court in two cases (Pomeroy v. Pomeroy, 93 Wis. 262, 67 N. W. 430, and Ludington v. Patton, 121 Wis. 649, 662, 99 N. W. 614) contrary to the contention of the respondent. In the Pomeroy Case, after reviewing the Massachusetts cases under a similar statute, it is held that parol evidence is inadmissible to prove an advancement, and that all other evidence than that prescribed by the statute is excluded by implication. And in the Ludington Gase it was held that the charge in writing must be made at the time of delivery of the property. The court said (121 Wis. 663, 99 N. W. 618):

“The statute is mandatory and must be enforced as written. Pomeroy v. Pomeroy, 93 Wis. 262, 67 N. W. 430. It clearly contemplates that a delivery of property by one to another, the latter having claims upon the former’s bounty, is not to be deemed an advancement unless it is given that character at the time of such delivery, either by a declaration in the writing making the bestowal, or by an acknowledgment in writing at that time by the recipient of the^bounty, or by an expression of the donor in respect to the matter in charging the property to the person receiving the same.”

But it is said in the opinion of the learned trial judge, and so argued' by counsel here, that the question as to when the charge of advancement must be made was not involved in the Ludington Case. The question of the construction of the statute (sec. 3959) was involved and under consideration,. and it is clear from the briefs of counsel in the case that whether the writing or charge referred to in the statute should he contemporaneous with the advance was also regarded in the case by counsel as necessarily considered in construing the statute as applied to the facts of the case then under consideration. It is also clear from the opinion that this court regarded the point as necessarily in the case and one of the propositions upon which the decision of the court rested. But even if we should consider what was said in the Ludmgton Case on the point as obiter, we see no reason to depart from the conclusion reached and declared by the court, and we adhere to the construction put upon the statute in that case. The manifest purpose of the statute in making the charge in writing evidence of an advancement is. that the'-charge must be made contemporaneously with the advancement. This is in harmony with the rule respecting book accounts. In Marshall v. Coleman, 187 Ill. 556, at page 580 (58 N. E. 628, at page 636), the court said:

“Book accounts are only admissible in favor of the party who keeps them when the entries are made contemporaneously with the transactions recorded, and the same rule applies to books and entries of deceased persons. 1 Greenl. Ev. (13th ed.) § 118; 1 Whart. Ev. §§ 246, 688; 2 Woerner, Adm’n (2d ed.) § 558; Nelson v. Nelson, 90 Mo. 460, 2 S. W. 413. ‘Declarations or book entries of tbe donor subsequent to tbe transaction are inadmissible unless they are of tbe res gestee or against interest.’ 2 Woerner, Adm’n (2d ed.) § 558.”

See, also, Young v. Young, 204 Ill. 430, 68 N. E. 532; Nelson v. Nelson, 90 Mo. 460, 2 S. W. 413.

Nor were declarations of Jobn Arthur made after tbe transfers admissible to prove advancements. Kimball v. Leland, 110 Mass. 325; Harness v. Harness, 49 Ind. 384; Thornton, Gifts & Advancements, p. 198, § 224; Howard v. Howard, 101 Ga. 224, 28 S. E. 648. It will be seen that tbe cases, from other jurisdictions are in harmony with tbe decisions; of this court heretofore cited. Indeed, it is unnecessary to go outside of tbe decisions of this court. Tbe Pomeroy and Ludington Oases are decisive of tbe propositions involved.

It follows that there is not sufficient evidence to support tbe findings or conclusions of tbe court below to tbe effect that tbe transfers to tbe sons of Jobn Arthur, deceased, were advancements, or to warrant tbe court below in reversing the judgment of tbe county court in part. Tbe judgment below must therefore be reversed.

By the Court. — Tbe judgment of the court below is reversed, and tbe cause remanded with directions to affirm the. judgment of the county court and for further proceedings according to law.