| Ala. | Nov 15, 1895
William Forrester died intestate, owing no debts, leaving six heirs at law. At the time of his death, he was seized in fee of 160 acres of land situated in Tuscaloosa county, and which descended to his heirs. One of the heirs, Mrs. Jennie Robinson, with her husband, executed, after the death of William Forrester, a conveyance to the complainant, Henry B. Foster, of all her right, title and interest in the said lands, and the bill was filed for a sale of the lands for partition between himself and the other heirs, on the allegation that the property could not be equitably divided without a sale.
The heirs (with the exception of Mrs. Robinson, who having conveyed, was not made a party) filed a joint answer in which the averments of the bill were substantially admitted. It was averred, however, that the decedent had in his lifetime, conveyed to one Snow, for the benefit of his daughter,. Mrs. Robinson, a tract of 40 acres of land, with the understanding and agreement that it should be treated as an advancement, and should be in satisfaction of all her right and interest in his estate. The answer was made a cross-bill, and it was prayed that the deed from Mrs-. Robinson and her husband to the complainant might be ordered given up and cancelled.
It was held in Marshall v. Marshall, 86 Ala. 383" court="Ala." date_filed="1888-12-15" href="https://app.midpage.ai/document/marshall-v-marshall-6513404?utm_source=webapp" opinion_id="6513404">86 Ala. 383, that as incidental to a partition among heirs, a court of equity might adjust and equalize advancements. An alienation by one of the joint owners, cannot of course, affect this right. The purchaser is chargeable with notice of
The only question admitting of serious contention, is whether the sum received by William Forrester from Snow as the purchase price of the forty acres sold him, was an advancement to the daughter, Mrs. Robinson. The evidence may, perhaps, sustain the conclusion that while the money was procured by the ancestor, at the request of the daughter, Mrs. Robinson, it was not used to pay a debt for which she was in any wise' bound, nor was it used fora purpose which, in a legal sense, was of any benefit to her. Her' husband was in prison and the money was used in a lawful way by his father-in-law to procure his release. Such a transaction cannot be said prima facie to constitute an advancement. To treat it as “a portion or settlement in life,” would be an unwarranted extension of our statute. — Code, § 2930; Fennell v. Henry, 70 Ala. 486.
We will not say, that if it was clearly shown that such was the intention of the parent an advancement might not result. But the burden in this record is, as we have said, upon the complainants in the cross-bill, in the first instance, and was not discharged or shifted by proof of the facts we have stated. The evidence, in such case, must go further and show satisfactorily an intention coincident with the transaction to treat it as a ‘‘portion or settlement in life ;” as an anticipation of the daughter’s share of the donor’s estate, if he died,intestate. There was not probably any well defined intention in this respect, in the mind of the donor, at the time of the transaction, and that is the period of time at which it must have existed. After a careful consideration of the evidence in the record, we conclude, with the chancellor, that the proof does not reach this point. It results that the decree of the court below is affirmed.