Brown v. Brown, 16 Vt. 197

16 Vt. 197 | Vt. | 1844

The opinion of the court was delivered by

Williams, Ch. J.

We are agreed, in this case, that the judgment of the county court must be reversed, though we are not so far agreed on all the points made as to decide them at this time. We think the book should have been received in evidence, and submitted to the jury, as evidence of an advancement pro tanto. The statute in force at the death o'f the intestate was similar to an act passed in Massachusetts in 1783, and is as follows : “’That if -any heir shall have been advanced by the intestate, such advancement shall be reckoned to the share of such heir, either in whole or in part, according to the value thereof at the time of the advancement,” and that any deed of lands or tenements, made for love and affection, or any personal estate delivered to such heir, whereof a charge or memorandum in-writing is made by such intestate, — or delivered expressly as an advancement before two witnesses, who were requested by the intestate to take notice thereof, shall be be deemed and taken an advancement to such heir.

To me it appears that the supreme -court in Massachusetts took a correct view of the statute then existing in that state, when they admitted other evidence in the case of Scott v. Scott, 1 Mass. 525, and when they said, in the case of Quarles v. Quarles, 4 Mass. 680, that if was the intention of the statute to substantiate certain species of evidence, which, without legislative provision, might be doubtful, and not to exclude other evidence; — that the modes of evidence specified in the statute are examples-only, and not exclusive provisions. I should be disposed to consider, as was determined by Lord Hardwick in Fawkner v. Watts, 1 Atk. 406, that parol evidence of the declaration of the father would not be allowed to show an advancement; but evidence of the acknowledgments of the child, that he or she have received certain sums by way of advancement, would be admissible. The receipt, admitted in the case of Robinson v. Robinson, Brayt. 59, was nothing more than an acknowledgment of the child, made in writing it is true, but not a charge or memorandum in writing, as mentioned in the statute. Between the statute of distribution in England, and the custom of London, it was said, in the case of Elliot v. Collier, 1 Ves. 15, that there was no difference, — advancements, whether on the statute or custom, being just the same. Under the custom, a child was considered fully advanced, unless the father, by writing under his hand and seal, not only declared that such child was not fully advanced, but likewise mentioned in certain how much the portion did amount to, so that it might appear what sum was to be brought into hotchpot. Civil v. Rich, 1 Yern. 211. From the case of Fawkner v. Watts, before mentioned, it would appear that a writing under the hand of the father, without the seal, would have the same effect.

It appears to me, that the statute was only meant to declare that the evidence there recited should be considered as evidence of an advancement. This question, however, is now of comparatively little importance, as our present statute declares what shall be evidence of an advancement, and excludes all other. As to cases arising under the old statute, it is to be noticed that the opinion expressed in the case of Newell v. Newell, 13 Vt. 24, was said to be only the opinion of the judge, and not of the court; the other members of the court then present did not coincide with the learned judge, who delivered the opinion of the court, on that subject, but did not express any dissent, as the decision of that case did not require it.

We consider that the book offered in evidence contained such a charge or memorandum in writing as was contemplated by the statute then in force; that no particular form of words is required to show an advancement; but that an entry on the books of the intestate, of property delivered to a child, made in such a manner as to exclude the idea of a debt, is evidence that it was intended for an advancement; and that the intention need not be expressed in the memorandum, or charge. The decision in the case of Bulkeley v. Noble, 2 Pick. 337, was to this effect, and the decision in the case of Ashley, appellant, 4 Pick. 21, is not opposed to it. The decision in the latter case was made under a statute of 1805, which required that the charge, or memorandum, should be expressed as made for an ~advancement, — and moreover the charge itself implied, not a gift to the child, but an account, or debt, against him. If goods are in point of fact delivered to and received by the child as an advancement, and charged as such, the father cannot alter the charge, and make the child a debtor; this was determined in the case of Dean v. Delaware, 2 Vern. 628; nor can he, by any expression of his intention afterwards, charge that as a debt which was intended as an advancement.

As we are all agreed that the book offered in evidence should have been received, for that reason the judgment is reversed. Whether any further evidence of other sums received can be established, or whether the deposition of Chamberlain tends to prove any further advancement, is undecided.