40 Pa. 57 | Pa. | 1861
The opinion of the court was delivered,
Our Acts of Assembly do not define an advancement, and we are therefore compelled to resort to the decisions of the courts, to determine whether a sum of money received by a child from a parent or expended for his benefit, is a gift or an advancement, or whether it is intended to create legal indebtedness. Questions of advancement are always questions of intention, and of intention when the property is received by the child. If it was a gift then, it cannot be converted into a debt by any subsequent act or intention of the father. If it was the
' This presumption may be overthrown by proof of the father’s intention to furnish the money as an advancement, rather than in discharge of a parental duty, but without such proof it must prevail. It was overthrown in Riddle’s Estate, by what evidence we do not know. The report only states that the father kept an account of the expenditures, and that the son believed it to have been his father’s intention to charge him with them. Two successive reports of auditors found them advancements, and this court refused to set aside their decision, remarking, at the same time, that the court might not have drawn the same conclusion from the facts.
So, too, it is cogent evidence that an advancement is not intended by a father (and in most cases it is conclusive evidence), that he takes from the child a security for the money furnished, or attempts to preserve evidence of it as a debt. High’s Appeal, 9 Harris 287. If the gift is designed to be irrevocable, there can be no reason for attempting to retain the power of recalling, and the attempt shows that it is not the purpose of the father to give up all possible control over it.
In the present case, both these presumptions against an intended advancement are raised more or less distinctly by the ■facts. The money which the appellant received from his father, or which was expended for his use, was furnished for his education, and at the time when it was furnished nothing was said or done by the parent to indicate an intention to treat it as a part of the son’s portion. True, there is evidence that the case was not one of mere discharge of the parental duty to educate the son. The charges made indicate that. But before the money can be treated as an advancement, there must be affirmative evidence that it was intended to be neither a gift nor the creation of a debt, but a part portion. In some eases this intention is
Then, what is there on the other side to show that this, which was primé fade the creation of a debt, was not such, but was an advancement on account of a child’s portion ? Nothing in the admissions of the son; for while he acknowledged that he was charged in his father’s book, there is no proof that he ever said the charge was anything else than evidence of a debt. All that there is must be found in a declaration to a single witness made by the father in 1856, long after most of the money was furnished and charged, and in the absence of his son. To G. E. Hurlocher he said, “ George never worked much, or earned much at home. He charged George with every dollar he paid for his schooling. It is calculated it is to come off from his ‘ erbschaft’ (inheritance.”) There is no evidence that he ever made similar declarations to any other person. That such conversations of the father are not sufficient to convert a debt into an advancement is abundantly settled. In Haverstock v. Sorbach, 1 W. & S. 393, it was laid down that loose declarations of a parent that he intended an existing debt should be an advancement, not substantiated by writing, nor made to the child, nor accompanied by any act, are not sufficient to destroy a debt secured by legal
In fine, we are of opinion no evidence in the cause satisfactorily establishes that the money furnished by the father Avas originally intended as an advancement, or that it Avas made such by any subsequent act or declaration; The decree of the Orphans’ Court, sustaining the second and third exceptions taken to the report of the auditor, must, therefore, be reversed.
The remaining assignment of error is not sustained. Judging from the amount of the estate and evidence, four hundred and' fifty dollars Avas a sufficient compensation.
And now, to Avit, July 24th 1861, this cause having been argued by counsel and duly considered, it is ordered, adjudged, and decreed that the decree of the Orphans’ Court be reversed, and the record is remitted with instructions to charge the accountants only with a balance of $1535.89 of personal property (the sum of $962.98 not being chargeable to George M. Miller as an advancement), and to cause distribution of the balance to be made according to the will of Joseph Miller and the intestate laws.