61 Md. 603 | Md. | 1884
delivered the opinion of the Court.
By our laws of inheritance, it is enacted that if any child or children, or their issue .shall have received from the intestate any real estate by way of advancement, they may elect to come into partition with the other parceners, on bringing such advancement, or its value, into hotchpot with the estate descended, and shall not be entitled to claim a share by descent without so bringing in the advancement, if there be another child or children unprovided for. Code, Art. 47, sec. 31. And by our Statute of Distributions it is declared that if any child or descendant has been advanced by the intestate by settlement or portion, the same shall be reckoned in the surplus for distribution, and if it be equal or superior to a share, such child or descendant shall he excluded, hut maintenance or education, or money given without a view to a portion or settlement in life, shall not be deemed advancement. Code, Art. 93, sec. 126. The manifest design of these
Tile record shows that Joseph Dilley died on the 16th of March, 1879, at a very advanced age, intestate, and leaving real and personal property, to the value, as we gather from the testimony, of over $100,000. He had five children: two sons, J. Frank, and Barney, and three daughters, Minerva, Margaret and Armida. Of tírese, Barney, and Margaret, who married Benjamin R. Edwards, are now living. J. Frank died in April, 1879, shortly after his father, leaving a widow and three married daugh
Barney Dilley obtained letters of administration upon his father’s personal estate, and was proceeding to settle the same in the Orjfiians’ Court, when, in June, 1880, a bill was filed by Mrs. Love and her husband, praying for a sale of the real estate for the purpose of partition, and that the proceeeds of the same, together with the surplus personal estate, after payment of debts, may be distributed under the direction of a Court of equity. To this bill, Barney Dilley, in his own right and as administrator of his father, together with all the other heirs-at-law and distributees of the intestate, were made defendants. The principal averments of the bill, are that J. Frank Dilley, Barney Dilley, Mrs. Edwards and her husband, and Mrs. Everett and her husband, received from the intestate in his life-time, large sums of money, and other property by way of advancement upon and out of the proportion of the estate, which would be coming to them, respectively upon the death of their father. The answers deny these averments, and to the issue thus made up the greater part of the large mass of testimony appearing in the record has been directed. The several appeals in the case have been taken by parties dissatisfied therewith, from an order ratifying certain reports and accounts of the auditor, making distribution of the personal estate or a part of it.
Numerous exceptions have been taken to different portions of the evidence, but many of them are of no im
1st. Are the various "sums of money,and portions of property received by the several heirs and distributees from, or paid to or for them by, the intestate in Lhis lifetime, to be regarded and treated as advancements, or as creating debts, or as mere gratuities or absolute gifts ?
2nd. What amount has, in -point of fact, been so received by, or paid for and on account of, these several heirs or distributees respectively?
First. We have found no evidence in the record that the advances conceded or proved to have been made by the intestate, were intended by him as mere gratuities or absolute gifts to his children or grandchildren, and the question therefore is did they constitute as between him and them advancements or debts? By the decision in Graves, et al. vs. Spedden, et al., and the other adjudications of this Court there cited, it is settled that in this State, as in England, a gift of money or property by a parent to a child is presumptively an advancement, but that this presumption may be repelled by evidence proper for the purpose ; in other words whether such a gift takes the character and legal properties of an advancement, or
We have carefully examined the testimony contained in the record, but it is too voluminous to be reviewed in detail. It shows that the intestate, a man of large means, was generous and liberal to his children and grandchildren. To some of them he furnished money to start them in business, and also relieved them from embarrassment by paying their debts, and these and the like benefactions continued from the time his daughters were married, and his sons grew up to manhood, down to the last years of his life. At times he would scold them for their improvidence, hut in most cases yielded to their requests,, and never failed to relieve their necessities. But while he was thus generous he was also just. He had no favorites but desired that all his children and grandchildren should share his estate equally, as the law provides; and he adopted a plan which he thought would secure this equality of distribution. He knew he was giving and would have to give more to some than to others, and he therefore exacted and took from them their notes for the several amounts so from time to timé advanced to them respectively. He did this, to use his own language, “ so-that some should not get all and others nothing, and he would have the notes in proof against them; and he intended the amounts of these notes to be talcen from each one that had gotten money, after he was dead.” The proof does not show that he said this to each one, on each occasion and at the exact time the advance was made, but it does show that he did so on more than one occasion, and frequently repeated it to them afterwards; and that they
We are, therefore, of opinion that the several donations of money and property made by the intestate to or for his children and grandchildren, whose parents were then dead, were, in law, advancements, and we accordingly determine, that in the distribution of his estate, both real and personal, they must be treated as advancements, and not as debts. The grandchildren thus advanced are James Athey, John Everett, and the complainant, Mrs. Love. Among other advances to his son Barney, the proof shows that his father gave him money to go into business in Wellersburgh, in the State of Pennsylvania, and for this he confessed a judgment in that State on the 6th of Eebruary, 1860, in favor of his father for $4423.69. Upon this judgment, there are credits amounting to $1282.57, leaving a balance of $3141.12, as of the 10th of February, 1860: This judgment, with this balance due thereon, the father preserved as a voucher, as he did the notes of his son, and, under the evidence, it stands upon precisely the same footing as these notes. This balance must, therefore, be also considered as an advancement. Payment of a debt by a father for a child, is presumptively an advancement, (Johnson vs. Hoyle, et al., 3 Head, 56,) and it is clear from the proof, that the intestate in this case, so intended whenever he paid such debts, and we have no hesitation in deciding that such payments must be treated as advancements. Again an advancement to a husband by his father-in-law, is an advancement to the wife. The advancement set up in Stewart
The case of Dr. Everett, however, is peculiar. Three, at least, of his notes, appear to have been given more than a year before his marriage, and these, of course, must be excluded from the case altogether. There is nothing to show that the intestate advanced him the money represented by these notes in contemplation of his marriage with his daughter, or as a settlement upon her, and. upon no principle can they be set up, either as advancements or debts, against her children as distributees of her father’s estate. He also gave other notes after marriage and before the death of his wife, and as to these there is no difficulty. We have already said they represent advancements, ancf must be so treated. Others again were given after the death of his wife, and whether these can be regarded as advancements to, or for the benefit of his children, the grandchildren of the intestate, is a question of more difficulty, and one upon which there may be contrariety of decision or conflict of authority. But in the case of Barber vs. Taylor’s Heirs, 9 Dana, 84, where land had been conveyed to the husband, after the death of his wife, the deed reciting, that it was understood that the donor conveyed the land as part of the portion he had given to his son-in-law, with his daughter, it was held that her children, coming into partition with the other heirs of their grandfather, must bring the land so conveyed to their father into hotch-pot, at its value at the time of the conveyance ; and in the very able opinion delivered by Oh. J. Robertson, it is said “there can be no doubt that if a father should vest in a
This, we think, disposes of all the questions arising under this branch of the case, and the result is, that the accounts which treat some of these advances as creating’ debts, and others as advancements simply, must be rejected, and the estate be distributed entirely upon the basis of advancements. By this mode of distribution, not only will the great inequality among the distributees resulting from the fact, that debts bear interest, while advancements do not, be prevented, but the manifestly just and impartial plans and purposes of the intestate, as well as his clearly proved wishes and intentions, be carried out, and the equal and exact justice which the law of advancements contemplates, will, as far as possible, be done to all entitled to share in his estate.
Second. We come now to the question of amounts, and here the declarations of the intestate must be disregarded. While, as we have said, such declarations are admissible to show that whatever sums of money or property these children or grandchildren may have received from him, were intended as advancements and not to create debts, it is well settled that this is their only effect. They are not admissible to prove or establish the fact that any of them had received money or property from him, or the amount so received; that must be shown, like any other fact, and according to the ordinary rules of evidence. There seems to be no question but that the
But in determining the amounts to be charged against Barney Dilley, Edwards and wife, the children of Mrs. Everett, and the administrators of J. Erank Dilley, the greatest difficulty is encountered. And this arises from the fact that the proof tends to show that many of the notes of Barney Dilley, Edwards, Dr. Everett and J. Erank Dilley, taken by the intestate, were either destroyed by him shortly before his death, or else have been cancelled or destroyed since his death. One of the witnesses whose testimony has a most important bearing on this question is Ackland C. Dilley, a son of Barney Dilley, and, among other things, he swears that he was at his father’s house in Cumberland on the 25th of March, 1879, shortly after his grandfather’s death, that he knew his father kept his own papers in a bureau drawer in his mother’s room, and supposed he had grandfather’s papers there too; that he had a curiosity to see these papers, to know what he was worth, and how'much each one had had, and he accordingly went up to the room and opened the drawer, and he then says, “I there found grandfather’s papers in the large pocket book I knew he always kept them in; I opened the pocket book and found several bundles of notes; the notes making each bundle were joined together; there were Dr. Everett’s* notes, uncle Erank Dilley’s notes, Ben Edwards’ notes, father's and other notes; I added Dr. Everett's notes without figuring
A few minor points remain to be decided, and this may be done very briefly. We concur entirely with the Court below in the opinion, that the commissions allowed by the auditor to Barney Dilley, as administrator and collector of rents, and to him and Edwards, as receivers, are sufficient, •and that no good ground has been shown for allowing more. We are also of opinion that the several exceptions to the accounts: 1st, because the auditor has charged Barney Dilley with the.sum of $118.90 as interest on an ■amount of rent collected by him in the life-time of his father, and for which he did not account; 2nd, because he has credited him with the sum of $20.8.80 as a balance -on book account; and 3rd, because he has failed to charge him with certain specified sums, alleged (but not satisfactorily proved) to have been collected by him in the lifetime of his father, were properly overruled.
Having thus decided all the numerous questions (save those specially reserved) presented by these appeals, we reverse the order appealed from, and remand the cause for further proceedings in accordance with the views expressed in this opinion. The costs must be paid out of the fund in Court. .
Order reversed, and cause remanded.