13 Vt. 24 | Vt. | 1841
The opinion of the court was delivered by
This case comes before this court, by an appeal from the decree of the court of probate.
It seems that John Newell, in his life time, conveyed by two certain deeds to his son, Hernán H. Newell, certain lands for the consideration, as expressed in each of the deeds, of two thousand dollars; and it is insisted that these deeds were executed upon no other consideration than that of love and affection, and that the lauds conveyed, should be adjudged an advancement to this heir. As these deeds, upon their face, purport to have been executed upon- a pecuni
As to the deed of 1836,' there is no evidence to show that it was not executed upon the consideration therein stated. As to the deed of 1838, it seems that the intestate had paid for the other heir, large sums of money ; but had not, as we can learn, charged them as advancements; and it appears, from the testimony, that he undertook to equalize them; and, for this purpose, as well as to compensate Hernán for the property which the latter had received of He-man’s mother, belonging to him, this second conveyance was made. Under the English statute of distributions, a deed for love and affection is but prima facie evidence of an advancement, and this may be rebutted by proof; and the same doctrine is held in Hatch v. Straight, 3 Conn. Rep. 31, the statute of Connecticut, relative to advanced portions, being, in substance, a copy from the English statute of distributions.
If our statute relative to advancements is to have a similar construction, whether it appears from the face of the deed, or from extrinsic evidence, that it was made simply upon the consideration of love and affection, it is clear the lands conveyed, under the deed of 1838, ought not to be deemed an advancement. It must, after all, turn on the intent of the intestate. To hold, upon the facts now in evidence, that this deed constitutes an advancement, would I think do violence to the intention of the deceased, and would
But, as different views may be entertained as to tlie effect which should be given to the statute, it is not necessary that it should be passed upon in this case.. The court are all agreed, that, though we hold that the testimony offered is admissible, yet, it is insufficient to constitute the lands conveyed by either of the deéds an advancement; and the decree of the court of probate is affirmed.