Autrey v. Autrey's Adm'r

37 Ala. 614 | Ala. | 1861

R. W. WALKER, J.

The- rate-is,--that- when either. i money or property is given by a parent to his child, it -&iil i be presumed to be an “ advancement under the statute, unless the nature-©f the -gift repels-su'ch presumption ; as in the case»,of triüáng presents, money expended for education, &c. But thq presumption, that' property given by a , parent to his child was intended-as an ‘ adtancemfent,’ may - be repelled by evidence showing that a gift, and not an advancement, was intended; and for this'purpose; the contemporaneous declarations of the parent are admissible.— Mitchell v. Mitchell, 8 Ala. 414, 421 ; Butler v. Mer. Ins. Co., 14 Ala. 777. And where the question arises between distributees, whether property received by one of them was intended as an advancement,’ or as a pure gift, there r is much reason, as-Y^-ell as authority, in support of the pro position, that the declarations of the intestate, made sub sequent to the delivery, expressive ’of. his intention -in parting with the property; are adniissibleriii favor of the child to whom it was delivered.- Phillips v. Chappell, 16 Geo. 5 16 ; Sherwood v. Smith, 23 Conn. 5 Rep. 516 ; Lawson’s appeal, 23 Penn. St. R. 85 ; Johnson v. Balden, 20 Conn. 322 ; 2 Phill. Ev. (C. & H.’s notes, edit. of 1859,) 705.

We need not however, decide this question in the present case ; for, assuming 'the admissibility > of all the evidence : set out in this record, we are hot so well convinced that the register erredtin his conclusion, thatilve are willing to reverse his decree. The appellant filed' his answer to the allegation, as required by the fact of February 8, '58 (Acts ’57-8, p. 305); and ili that he states, that in 1828 he ¡received “ household furniture, valued fey said Alexander Autre}'- at the time of the gift' ¡a-t $25, and one negro, Ali bert, valued at and’- worth $400 and that in 1851 he > received‘ one negro man, Dick, valued by said Alexander Autrey at ¡,$1,000’.” -'The fact that the'-property was given and received at a specified value, seems to indicate that fit was intended as an advancement, and not as a pure gift. . At any rate, it is clear from the appellant’s answer, th'at r the alleged intention of the intestate, that the property «-should be held.-as a. gift, and;not as an advancement, was •; aot communicated to the son, either .when the property ' wa® delivered, or at .any time afterwards. This circum- . stance, we think, raises a strong presumption against the . existence af such an intention. The only evidence to repel ■ this.presumption consists of the subsequent declarations of t the parent^ testified.to by twov.witnesses, one of. whom is •( the son of .the appellant. The’ declarations detailed by the •■witness Baggett, are reconcilable with the idea, that the i intestate intended that.the propefty-.should be considev&d ¡ an advancement; and that all that he .meant to state to • the witnessiwas¡,that the'property which he had'delivered i to his children had not been simply loaned to them, but that he had given them, the absolute title. When we con- . aider the relation of the other witness to the appellent, and ■ the caution with which evidence ofi.declarations, made in • casual conversations, should always bereceived,iwe are not ■. convinced that the register erred in deciding that this testimony was insufficient to- overturnpresumption of an ■ ‘ advancement’ arising out of the other facts in the case. " The record does not show that .the girl Oily constituted- a part of the advancements with which the appellant was ■charged. ‘ On the contrary, the inference from the record is,, •.that the sum with which-he was charged was.i.exclusive>of . her value.

Decree, affirmed.