57 Pa. 461 | Pa. | 1868
The opinion of the court was delivered, by
There is in this case no evidence exactly contemporaneous with the deed which the father made to his son, or with those which he made to the son in trust for the daughters (except what is found in the deeds themselves), that indicates whether the conveyances were intended to be simple gifts or advancements. They were assurances of land, and in each case the value of the property conveyed was large, when considered relatively to the
In this ease the intestate left four children. To three of them he had made voluntary deeds for lands valued at $13,105. The remainder of his estate was about $35,000. Nearly one-third of his estate he distributed in his lifetime. If the deeds to the three children are not now to be regarded as having been advancements, it must be because the grantees have shown that they were intended as simple gifts, and not as distributions of advanced portions. And this they must have shown by a weight of evidence sufficient to overcome a decided presumption against them. We
Nor is there anything in the subsequent declarations of the intestate at all inconsistent with the presumption that the conveyances to the three children were intended as gifts of advanced portions. Throwing out of consideration the declarations of the father that the children for whose use the deeds were made, had received their share of his estate, or that his daughter Sarah and his son George had, and regarding alone the testimony adduced on behalf of the said two children, we have 'only that of Mrs. Wendell and Jonas Snyder. Both speak of the same conversa*
Nor do we see that there is in the proceedings of the Orphans’ Court in partition any estoppel against asserting that some of the parties had been advanced. Mrs. Baxter, the appellee, united with her brother and sister in applying for commissioners to make partition of the land of the intestate. She accepted a purpart and entered into a recognisance to secure to the other heirs their equal and proportionable part of the valuation or price at which it was accepted. But what is an equal and proportionable part ? The Acts of Assembly determine that it is such a share as shall make each child equal with the others, after deducting his advancements. Doubtless a decree in partition is conclusive of the right as between the parties. But right to what ? To the land divided or allotted. To nothing more. It is not too late after partition to settle the matter of advancements to some of the parties, and consequently the distribution of the valuation-money among those by law entitled: Blanchard v. Commonwealth, 6 Watts 809.
The decree of the Orphans’ Court is affirmed at the costs of the appellants.