91 Mich. 587 | Mich. | 1892
Abram L.’ Power died leaving three sons- and a daughter. To two of his sons he had .made advancements, — one of $2,400, and the other of $3,000...
“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.” How. Stat. .§ 5780.
■ “ If the value of the estate so advanced shall be -expressed in the conveyance or in the charge thereof made by the intestate, or in the acknowledgment of the party receiving it, it shall be considered as of that value, in the division and distribution of the estate; otherwise, it shall be estimated according to its value when given, .as nearly as the same can be ascertained.” Id. § 5781.
Simultaneously with the execution of the deed, decedent wrote and signed the following paper:
“I hereby certify that I have this day deeded and given to my son, Charles F. Power, a house and lot, No. 61 Butternut street, valued at $2,500, including a mortgage on said property of $300, as a portion of his patrimony.”
This paper was written in the presence of his wife and daughter, and no question is raised as to its genuineness.
The subject of advancements is regulated by statute law, and, if there are defects in the law, the Legislature alone can remedy them. Thompson v. Carmichael, 3 Sandf. Ch. 120. The statute above quoted prescribes the rule of evidence in these cases. The advancement must be evidenced in writing. Parol evidence of the declarations of the decedent prior to and after the execution of the deed was therefore inadmissible.
The appellant insists that the declaration was incompetent to vary the terms of the deed, and that, whe2-e there is a written conveyance, the gift is not an advancement, unless it is either therein so expressed, or is acknowledged as such in writing by the child. This is to ignore the statute, which expressly provides three-ways in which one may express a gift or grant as an advancement. In McGlintoch’s Appeal, 58 Mich. 152,. this Court held that such certificate was not evidence of payment, but that, whe2i the payment was otherwise proven, the certificate was admissible to show the purpose to treat it as an advancement.
The authorities above cited by the appellant do 2101-sustain his position. In Barton v. Rice the son had given a note to his father for money received from him,, and it was sought to show by parol that the money was given and 2’eceived as an advancement. In Newell v. Newell the deed conveying the land expressed a consideration of $2,000, and the attempt was made to show byparol that it was in fact made for love and affection, so as to bring it within the Yermont statute.
Under this statute the knowledge of the grantee that his father gave him the land as an advancement is not essential. These advancernents are not a. matter of contract, but are exclusively within the control of the ancestor. The decedent paid the mortgage upon this property, and the circumstances of this case show that the excessive-value placed upon it in the certificate does not operate-as any hardship upon the appellant.
Jugdment affirmed.
