70 Ala. 484 | Ala. | 1881
“Any estate, real or personal, which has been given by any intestate in his life-time, as an advancement to any child, or other lineal descendant, must be considered as part of the estate, so far as regards the division and distribution thereof amongst his children or their descendants, and must be taken by such child or descendants towards his share of the estate of the deceased.” — Code of 1876, § 2262. “The maintaining, educating, or giving money to a child, or other lineal descendant, without intending it as a portion op settlement in life, is not an advancement.”—Ib. § 2267.
We have, in these two sections, a pretty clear intimation of what the legislature intended should be regarded as an advancement, and wliat should not be so regarded. It must be a gift —a perfected gift, parting with the ownership — made during
There seems to be no controversy in this case, as to the nature of the title Hr. Fennell conveyed, and intended to convey, to Mrs. Ilenry, his daughter. The slaves were evidently intended to be her property, from the time of the transaction. Now, this transaction was intended to be a sale of the slaves, to be paid for — an advancement to be accounted for in distribution, or a gift outright, not to be accounted for. No one contends it w7as a gift outright, and the attendant circumstances clearly show it was not so'intended. Was it intended as a sale? Was it intended that Mrs. Henry should pay her father, Hr. Fennell, for the slaves ? This must depend on the facts, as they transpired at the time. Only two persons testify'as to what took place — Mrs. Fennell and Mrs. Henry. They alone, except Hr. Fennell, were present. In many respects, they differ; but, in all important particulars, the difference is much less
In one place Mrs. Henry testified she received the slaves as a purchase, and was to pay for them. In many places she denied receiving them as an advancement. Yet, when she comes to testify what was the understanding — what the declaration of her father when she obtained the slaves and gave the note — she expresses substantially all the ingredients of an advancement, although the word advancement was not used. This transaction took place soon after Mrs. Henry’s marriage. The property came from her father to lierj by way of anticipation — that she might enjoy some of his property during his life — not to be paid for to him, or during his life-time, but to be paid out of her part of her father’s estate. This, then, is what she means by purchase of the slaves, and payment of the purchase-money note. As facts, if there be nothing in the giving of the note, they prove an advancement, and not a sale
It is contended for appellant, that inasmuch as Hr. Fennell, when he delivered the slaves to Mrs. Henry,.his daughter, took from her a note, bearing interest, for the estimated value, this proves the transaction was a-sale, and parol evidence can not be received to prove it was intended as an advancement. Crey v. Grey, 22 Ala. 233, is relied on in support of this position. The point actually.ruled in that case was, that a note executed by the child to the parent was evidence of a debt, and was not evidence of an advancement. This question was raised on the record, and was correctly ruled. Certainly, the giving of a note, which is evidence of a debt due from the child to.the parent, is, per se, no evidence of a gift or advancement from the parent to the child. Prima facie, it is the very opposite. 'The court, in that case, went farther, and said, parol evidence will not be received to show that, at the time the note was taken, it was intended the transaction should be an advancement, and that the note did not represent a debt to be paid. The court had said: “ The bill of exceptions does not set out the parol evidence given in the court below, and, consequently, we can not say that it erred in receiving it.” What the court •said in regard to receiving parol evidence of the parent’s intention was consequently dictum,.
Gilbert v. Wetherell, 2 Sim. & Stu. 254, presents the case of a father who furnished his son.ten thousand pounds to engage in trade, and took his note for the sum, payable on demand. The business not prospering as the son had expected, he wished to withdraw from it, but continued in business at the request of his father. ' On his death-bed, the father had the note destroyed. Held an advancement, with which the son was -chargeable.
In Stewart v. The State, 2 Har. & Gill, 114, the court said: The well-settled rule of law, that parol evidence can not be offered to explain, contradict, or add to the terms of a written •contract, which, it was contended, precluded the appellant from going into extrinsic evidence to show the true character and design of the bill of sale, we do not think applicable to the question before us. No effort is here made to impeach or defeat the title transferred by this conveyance, or to alter or impair the rights of the cestui que lose under it, as far as relates
In Powell v. Powell, 5 Dana, 168, the advancement alleged was a tract of land conveyed by father to son, on a recited consideration of five hundred dollars paid. Declarations of the father were received as evidence that it was1 an advancement. The court said: “The question here is not as to the operation of the deed, or the responsibility or obligation arising upon it, but as to the intention of the parties. And' as the expression of a moneyed consideration may have been adopted for the mere purpose of showing the estimated value of the land, and fixing the responsibilities of the parties accordingly, without any money or property paid or to be paid by the grantee, we are of opinion that it should not be deemed conclusive evidence beyond that purpose. ' * * In this view of the subject, it would seem that the intention of conveying the land, by way of advancement, is not necessarily inconsistent with the expression of a fixed consideration, and that it may, therefore, be proved by parol.”—See, also, Shaw v. Kent, 11 Ind. 80; West v. Bolton, 23 Ga. 531.
In Clements v. Hood, 57 Ala. 459, a married woman had executed a writing, found among the papers of -the intestate, which, unexplained, imported an advancement made to her. We said : “Under the rules of the 'common law, such contract made by a married woman is void, and imposes no obligation, as a contract, on her. It could only amount to proof of an admission, made by her, that she had received such property. Such admission is not conclusive, but is, at most, evidence to be weighed. Any other legal evidence, contradictory or otherwise, should have been received, bearing on the question of ad
In this case, the testimony is very strong and very full, that when Dr. Fennell gave the possession of the slaves to Mrs. Henry, he intended they should be her property, and that she should not pay for them during his life. She could not pay for them, for she had no property other than the slaves given, with which to make payment. The note, as a promise to pay, was void, for she could make no binding contract to pay money. It was, at most, an acknowledgment; in this case, probably acknowledgment of value. Mrs. Fennell testifies they were to be accounted for in final distribution, as part of Mrs. Henry’s distributive share. In these respects, Mrs. Henry’s understanding, as testified by her, was not materially different from that of her mother. This constitutes advancement, although the word advancement may not have been used. The law regards the substance, not the names of things. We may add, that many witnesses testify to admissions by Mrs. Henry, confirmatory of the theory, that she was to be charged with the slaves in distribution. Her remark to her mother, when she executed the receipt, that she did not believe those who would wind up the estate would charge her with the negroes, shows that she even then thought she should be charged witli them in distribution, but for the fact that slaves had been emancipated. That she trusted or hoped wTould relieve her. In this she was mistaken. The advancement being made in 1859, abolition of slavery in 1865 did not relieve her. The loss was her loss.
The case of Terry v. Keaton, 58 Ala. 667, is distinguishable from this. The note which was sought to be varied by parol proof in that case, was a binding personal contract on the husband, and the question arose in a direct proceeding, based on' the note as a valid money obligation. Though void as a promise to pay by Mrs. Keaton, it nevertheless operated a charge on the lands. In this case, the note is absolutely void as a money obligation, binds neither person nor thing, and it is no part of the purpose of the suit to obtain a recovery based upon it. As we have said, the purpose is to affect the right to other property, — not the slaves, on account of which the paper was executed.
The remark of Dr. Fennell, testified to by Mrs. Henry, that in the event of emancipation of the slaves, he did not intend to
We have shown above that Mrs. Henry’s note is to be treated only as an acknowledgment. As a promise to pay, it is absolutely void. Hence, as a promise to pay interest, it is inoperative, and the question of interest on the advancement must be determined by the law. No interest must be charged. —Krebs v. Krebs, 35 Ala. 293. We need scarcely add, that "the question we have been considering must be determined without any reference to the surrender of the note by Mrs. Fennell, and its destruction by Mrs. Ilenry.
What is written above is the individual opinion of the writer. Not a conclusive conviction, for he has some misgivings on the subject. Still, he prefers the result his argument leads to, because, in his opinion, it clearly appears that Dr. Fennell did not intend the transaction should be a gift of the slaves, not to be accounted for, and did not intend it to be a sale, the slaves to be paid for as in ordinary cases of sale. It can not he treated as a sale, for Mrs. Henry had no capacity to make the purchase, or to bind herself. AÍ1 men are presumed to know the law; and hence we must presume Dr. Fennell knew that the note of his daughter, Mrs. Henry, was, as a contract to pay money, utterly null a,nd void. If, then, it be not an advancement, there is but one remaining possible category — namely, that it was intended as an absolute gift, not to be accounted for in distribution. So, my judgment is, in fact, the result of the logical process of reasoning by exclusion.
My brothers, however, differ with me, and hold that because the transaction was evidenced by what in form is a promissory note, parol evidence can not be received to show an intention different from that evidenced by the giving of the note. They adhere to the rule asserted in Grey v. Grey, 22 Ala. 233, “ that if a written instrument is perfect in itself, it must be the sole expositor of the intention of the parties to it; and parol proof of an agreement between them, not reduced to writing, which is repugnant to the terms and intentions expressed in the written instrument, can not be allowed.” They think that principle applicable to such a case as this. They refer to the following authorities in support of their views: Terry v. Keaton, 58 Ala. 667.
The result is, that the decree of the chancellor is affirmed.