Pomeroy v. Pomeroy, 93 Wis. 262

93 Wis. 262 | Wis. | 1896

Maeshall, J.

Several errors are assigned, but the only one requiring consideration on the record, and the only one seriously insisted upon, as we understand it, is one involving the question of whether the court erred in rejecting the offer of parol evidence to prove that land conveyed to plaintiff during the lifetime of the father was so conveyed by way of advancement.

The statute governing the subject is sec. 3959, R. S., which provides as follows: “ All gifts and grants shall be deemed to have been made in advancement, if they are expressed in the gift or grant to be so made, or if charged in writing-by the intestate as an advancement, or acknowledged in writing as such'by the child or other descendant.” Such statute existed in Massachusetts as early as 1805, and without material change it has ever since been the law of that state. It first received judicial construction there in Bulke-ley v. Noble, 2 Pick. 337, decided in 1824, where Park, 0. 3"., delivering the opinion of the court, said, in effect, it is perfectly clear that the trial judge, in rejecting parol evidence offered to prove an advancement, acted in conformity with the statute. This was followed in Ashley, Appellant, 4 Pick. 21, decided in 1826, where the court said: “We are bound by the statute of 1805, and therefore can consider nothing as an advancement unless proved in the manner therein prescribed.” This was subsequently followed in Bullard v. Bullard, 5 Pick. 527, decided in 1827, and again in Barton v. Rice, 22 Pick. 508, decided in 1839, and has never been departed from by the courts of that state.

Counsel contends that the statute says, in effect, that advancements may be proved in the manner indicated; that it does not exclude other proof; therefore, other proof may be resorted to. The precise point was under consideration in the Massachusetts case of Bulkeley v. Noble, supra, where the court said, referring to parol evidence: “ The statute, by implication, excludes all such evidence; ” and again, in Barton v. Rice, supra, where Wilde, J., delivering the opinion, said: “ Oral testimony is clearly inadmissible to prove an advancement, which must be proved in the manner prescribed in the Revised Statutes, ch. 61, sec. 9. That provides, c that all gifts and grants shall be deemed to have been made in advancement, if they are expressed in the gift or grant to be so made, or if charged in writing by the intestate as an advancement, or acknowledged in writing as such by the child or other descendant.’ The statute does not expressly declare that an advancement shall not be proved in any other manner, but that undoubtedly is the meaning of the statute.” Such was the construction of the-statute by the Massachusetts court in 1838, at which time it was adopted without change by the state of Michigan, where-it became sec. 9, ch» 1, tit. 2, pt. 2, R. S. 1838. Eo different construction was given to it there, and in 1849 it was adopted here, and became sec. 8, ch. 63, R. S. 1849.

It is a familiar rule that, if a statute adopted from another •state has received an interpretation there, it is to have the :same interpretation here. Draper v. Emerson, 22 Wis. 147; Westcott v. Miller, 42 Wis. 454; Dutcher v. Dutcher, 39 Wis. 651; Arzbacher v. Mayer, 53 Wis. 380. It follows that the construction given to this statute by the Massachusetts court became, on its adoption here, a part of the law of this 'state. We therefore hold that parol evidence is inadmissible to prove an advancement; that, though the statute does not ■expressly declare that an advancement shall not be proved in any other manner than that indicated therein, such is undoubtedly its meaning; that, by prescribing a particular -manner for proving an advancement, by implication all other evidence is excluded. This is in accordance with the decision of the trial court, and it follows that the judgment •appealed from should be affirmed.

By the Court.— The judgment of the circuit court is affirmed.