4 Mass. 680 | Mass. | 1808
The facts presented in this case for the consid eration of the Court are, that the demandants are the children and heirs of Samuel Quarles, deceased, who was the son and one of the heirs of Francis Quarles, who is also deceased ; that the tenant is another son of F. Quarles; that on the 17th of August, 1785, F. Quarles, last mentioned, conveyed to the father of the demandants certain real estate, by a deed purporting to be for a valuable consideration ; * and the son, on the same day, [ * 682 ] made and executed a deed to his father, in which he acknowledged that, in consideration of his father’s conveyance to him, he was fully satisfied and contented as his share of his father’s estate, and did thereby acquit and discharge his father’s estate forever thereafter from having any demands thereupon as an heir to any part thereof
Here was a fair contract understanding^ entered into between the parties, — that the father should give to the son a certain portion of his estate, and that it should be received by the son, in full satisfaction of any claim he might otherwise afterwards have as an heir to his father; and this contract was carried into execution, as far as it was in the power of the parties to do it, by their deeds respectively. The meaning of the parties it is impossible to mistake ; it was fair and honest, and it is right and proper that it should be carried into effect; and it must be so, unless positive rules of law prevent it.
In the argument, it was supposed by the counsel for the demand ants that the acknowledgment in the deed of Francis Quarles the elder, that it was made for a valuable consideration, had concludec the tenant from setting it by as an advancement to Samuel. What, then, are we to say to the deed of Samuel to his father, made on the same day, in which he expressly acknowledges that it was made as an advancement, and as such received by him ? Certainly Samuel
[ * 683 ] * I do not think it necessary for the decision of this cause, so far as respects the statutes of the government, to go back beyond that of 1783, c. 36, the fourth section of which, after directing partition to be made of the estate of an intestate among his children or heirs, as the act directs, proceeds, 111 unless it shall so happen that some one or more of the children or grandchildren shall have portions of the intestate assigned or delivered to them by him in his lifetime ; in which case such portions shall be taken into consideration, and deducted from their shares in such partition respectively.” Now, the demandants’ father had a portion of the intestate’s estate assigned to him by the intestate in his lifetime ; and it must be taken into consideration.
But it is said that the demandants have established their title as heirs ; and as all questions of advancement are the subjects peculiarly of probate jurisdiction, until it appear by the judgment of that court that the provision made for Samuel was an advancement, the title of the demandants, as his heirs, remains unaffected by it; and that they are entitled to recover in a court of law.
What influence this argument would have had upon my mind, if it had been a partial advancement, I do not undertake to determine. But when the deed of the immediate ancestor of the demandants (they claiming as his heirs) is shown to the Court, by which it is demonstrated that they have no title, I know no principle of law by which we are hindered from declaring it.
It has been further urged that the evidence of what shall be deemed an advancement, is confined to the instances expressed in the seventh section of the statute, which enacts “ that any deeds of lands or tenements made for love and affection, or where any personal estate delivered a child shall be charged in writing by the intestate, or by his order, or a memorandum made thereof, or deliv
It is evident to my mind that the intention of the statute was to substantiate certain species of evidence, which, without legislative provision, might be doubtful; and not to enumerate * those particular species, to the exclusion of all others. [ * 684 ] Evidence of advancement may be given in many ways by parole, by writing and by deed, other than that which is expressed ; and if that evidence, derived from either of these sources, (and in many instances it may be much more satisfactory than that mentioned in the statute,) for the exclusion of which there could exist no good reason, be not admissible, there would exist many cases where there had been an actual advancement, without a possibility of proving it. What could be more absurd than that a charge or memorandum by the intestate should be evidence of the advancement of a child, while a solemn acknowledgment by his deed, as in this case, should not be at all admissible evidence for the same purpose ? It is impossible to believe such could have been the intention of the legislature. And in the case of Scott vs. Scott,
The only questions involved in this case, and which are necessary to decide it, are, 1. Was the conveyance to Samuel an advancement ? And if so, 2. Is it to be considered as an advancement in full of his share of his father’s estate ?
That it was an advancement, and an advancement in full, is acknowledged both in the deed of Samuel and in the record before us. Can there be evidence of a higher nature, or which ought to be deemed more satisfactory ? I think not. An advancement, then, was made. It must be considered according to the provision of the statute; and by what rule of law shall we say that the effect which was contemplated by the parties, and fairly and honestly intended, shall be defeated ? I have been able to discover no such rule. The parties were perfectly competent to make the contract, and I therefore conclude that it ought to be deemed obligatory.
But it is said that the father of Samuel, after the agreement which is expressed in the deed, might have acquired property, and that it would be equitable that Samuel should have his proportion of it.
* To this supposititious case I answer, 1. That the [*685 ]
The English statute of distributions, which, in this respect, is. the same in principle with our own, was grounded on the custom of London relative to orphanage. This is most evident from the whole current of their authorities, when inquiring what shall be deemed an advancement within the statute, when it should be put into hotchpot, &c. And it is not unfrequently expressed or implied that this is the case. I will mention only the case of Holt vs. Frederick,
In the case of Edwards vs. Freeman,
In Metcalfe vs. Ives,
In the case of Lockyer vs. Savage,
In Hancock vs. Hancock,
And in Cox vs. Balitha,
*It would be endless to mention all the cases which [ *687 ] have been determined upon similar principles. Enough have been noticed to comprehend every point of the case before us so obviously as to render an application of the authorities superfluous. If the same rules of construction, as to the nature and effects of an advancement in cases within the custom, are to be applied to cases within the statute, there can be no doubt what the judgment ought to be. And it will be difficult to find a reason why different constructions should be given ; why an advancement within the custom should mean one thing, and an advancement within the statute another. When the statute of distributions was passed, in i onsequence of the custom of London, the nature and effects of an advancement were well known; and when the legislature extended the same principle to the whole community, it cannot, in my judgment, be supposed that it should be extended in a different manner
The deed in this case, it is true, cannot operate technically as a deed of release, as the deeds of the orphanage cases did not; but there they operated to bar the orphans for the best reason in the world, — because they had agreed that they should ; and here, in my opinion, for the same reason, this deed ought to have the same effect; and that therefore the demandants ought not to recover.
Parker, J., of the same opinion.
[After reciting the substance of the pleadings.] The deeds of Samuel, and of Francis, the father, are of the same date, and refer to the same conveyance, property, and transaction, and being in no wise inconsistent, are to be construed as one instrument, expressing together the contract of the parties. And in this view it appears that Francis, the father, on the 17th of August, 1785, conveyed to his son Samuel, the father of the demandants, a certain farm, &c., in consideration of a sum of money, and in some uncertain part, as an advancement in full of Samuel’s share in his father’s estate; which Samuel accepted accordingly, [ * 688 ] * and by his deed acquitted and discharged his father’s estate forever thereafter from having any demand thereupon as an heir to any part thereof.
Notwithstanding this contract and acquittance by their father, the demandants claim as heirs to their grandfather Francis a share and portion of his estate, he having survived his son Samuel, and afterwards died intestate.
The pleadings admit the descent and heirship of the demandants ; and the act (1783, c. 36,) directing the descent of intestate estates, &c., provides that when any person shall die seised of lands, &c., not by him devised, the same shall descend in equal shares to and among his children, and such as shall legally represent them, (if any of them be dead,) except the eldest son, &c., who shall have two shares, &c. And the general question to be decided is, I think, whether the contract and writings between Francis, the grandfather of the demandants, and Samuel, their father, have defeated the inheritance of the demandants, or in any manner estop or bar them of the fruit of it.
The den andants claim their inheritance ; for although their share is to be ascertained by a reference to their father, and is said to be in right of representation, yet it is their right, and never was his. N<jmo est Imres viventis. It will not-be questioned that this contract or bargain of Samuel, if it had been made with a third person, to sell and convey a share and portion of the estate of Francis, the
The general rule of the common law is, that no right passes by a release, but a right which the releasor hath at the time of the release made.
In Vernon’s case, however, the decision maintains a plea of satisfaction by jointure in bar of dower, and in that view was cited as a case in point for the tenant. But that decision rests entirely upon the authority and construction of a provision in that case in the statute of uses, (27 H. 8, c. 10 ;) and in the case at bar, if the plea and rejoinder of the tenant avail to bar the demandants, it must be altogether by virtue of our statute, already cited, directing the descent of real estates, and especially that clause of it which provides in the case of advancements. It is therein provided that partition shall be made, &c., as the act directs, “ unless it shall so happen that some one or more of the children or grandchildren shall have portions of the intestate assigned or delivered them by him in his lifetime ; in
[ *690 ] *In construing the deeds of Francis, the father, and of Samuel, together, as I think they must be, they appear to me to be conclusive evidence of an advancement. The objections offered in this view of the subject from the seventh section of the same statute have been satisfactorily answered. The modes of evidence there enumerated are examples only, and not exclusive provisions. But this advancement was to the child, who, in the event, never became entitled to any portion in his father’s estate, as an heir to his father. And although the demandants claim by a right of representation, yet the descent is immediate to them ; and there may be some doubt, I think, whether the statute has made any provision in the case of an advancement to the son, when, after his death, a portion is claimed by the grandchildren in the estate of a grandfather, who had survived the father.
Avoiding this difficulty for the present, and being, indeed, inclined to the opinion that the statute may be extended constructively to this case, the question, then, is upon the sufficiency of the plea and rejoinder, which contain no averments respecting the estate of Francis, the father, nor any averments by which the Court can judge whether the advancement alleged was an adequate portion, or a just and equal share according to the actual circumstances of his estate. And, in short, the merits of the pleas in question, and of the defence, appear to me to rest upon the effect of the acceptance in full by Samuel. The objections, in this view of the case, have been already suggested; and for myself, I see no provision of the statute which operates to bar a child or grandchild of his portion and share by an advancement. On the contrary, the statute provides that advancements shall be taken into consideration, and deducted from their shares in the partition, <fcc. And the consequence of this reasoning is, I think, that every effect allowed to the facts pleaded by the tenant beyond the provisions of the statute ought to be warranted by some rule or principle of the common law.
An analogy has been attempted to be drawn between this case and the cases which have been decided in the courts of common law, but principally in the courts of chancery, in England, upon the effect of advancements by the custom of [*691 ] * London. The decisions, which have been cited and examined, so far as they are in any respect applicable, appear to determine that a declaration by the father, that an advancement was in full, will not operate to prevent a child from an orphanage part, he bringing the advancement into the distribution. And although, by the custom, the case of an advancement in
The statute of distributions in England contains, as to personal estate, a provision very similar to the clause of the * statute of this commonwealth relied upon in the case [ * 692 ] at bar. It is remarkable that no question of a release, or an acknowledgment of an advancement in full, or a collateral satisfaction in the lifetime of an intestate, has ever arisen under the statute of distributions. The reason may be, — and it is the only probable one, in my apprehension,—that advancements are enforced under the statute, not by a supposed release or extinguishment of the right or claim of the party in any case, but as a matter of set-off and adjustment in the distribution
I am, upon the whole, inclined to the opinion that such ought to be the course in the case at bar ; and tho* the rejoinder of the tenant is insufficient in law to maintain h’s olea; or, rather, tho. *1“ plea itself is not a sufficient answer to the detnauaants- claim.
Judgment for the tenant
Com. Dig. tit. Bargain and Sale, B 11. — Bac. Abr. same tit. D. —1 Co. 176, Mildmay’s case. — 2 Co. 76, L. Cromwell’s case. — 3 Term Rep. 474, Rex vs. Inhabitants of Scammonden.
Ante vol. 1. 527.
2 P. Will. 356.
1 Atk. 405, 406.
2 P. Will. 435.
1 Atk. 63.
8) 2 Str. 947
2 Vern. 665.
2 P. Will. 274.
Co. Lit. 265.
4 Co. Rep. 1.
Lex Test. 426.
2 Eq. Cas Al 398 £ SZ,.847