93 Wis. 262 | Wis. | 1896
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-
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.
By the Court.— The judgment of the circuit court is affirmed.