5 Lans. 486 | N.Y. Sup. Ct. | 1871
Joseph H. Sanford, senior, died on the 1st day of August, 1866, leaving a last will and testament, dated the 19th day of July, 1865; also leaving the plaintiff, an infant son, who was born after he made his will; also leaving the defendant Maria D. Sanford his widow ; and also leaving the defendants William A. and Joseph H. Sanford, sons, surviving him.
The deceased left an estate consisting of both personal and real property. He left the plaintiff* unprovided for by any settlement, and neither provided for, nor in any way mentioned in his will. The plaintiff) therefore, succeeded to the same portion of. his father’s real and personal estate as would have descended or been distributed to him, if his father had died intestate; and he is entitled to recover the same portion from the devisees and legatees, named in his father’s will, in proportion to, and out of the parts devised and bequeathed to them, by such will. (2 B. S. 65, § 49.)
This action is a consolidated one, made by joining two, that were brought under and pursuant to two sections of the Revised Statutes. (2 B. 8. 456, §§ 64, 65.) One was bróught to compel a distribution of the personal estate of the deceased, so that the plaintiff will receive his share of the same. The other was brought to compel a partition of the real estate left by the deceased, and devised to the defendants, between such devisees and the plaintiff) so that he will have his share of such real estate, and so as to enforce a just and proportionate contribution by each devisee.
The consolidated action was tried before a referee.
The most important question in the case is, whether the several pieces of real estate, and the $3000 above mentioned, were advancemárts, within the meaning of the statute, by which it is provided that, “If any child of .such deceased person shall have been advanced by the deceased, • by settlement or portion of real or personal estate, the value thereof shall be reckoned with that part of the surplus of the personal estate which shall remain to be distributed among the,children; and if such advancement be equal or-superior to the amount which, according to the preceding rules, would be distributed to such child, as hia share of such surplus and advancement, then such child and his descendants shall be excluded from any share in the distribution of such surplus.” (2 R. S. 97, § 76.) “ But if- such advancement be not equal to such amount,, such child, or his descendants, shall be entitled to receive so much only asrshall be sufficient to make all the shares of all the children, in such surplus and advancement, to be equal, as near as can be estimated.” (Id. § 77.)- “The maintaining or educating, or the giving of money to a child, without a view to a portion or settlement in life, shall not be deemed an advancement, within the meaning of the last two sections; nor shall those sections apply in any^ case where there shall be any real estate of the intestate to descend to his heirs.” (Id. § 78.)
It is further or again provided, by the statute, as follows: “ If any child of an intestate shall have been advanced by him, by settlement or portion of real or personal estate, or’
There is another section of the Revised Statutes, which is applicable to the last four sections above quoted. It is as follows: “Every estate or interest given by a parent to a descendant, by virtue of a beneficial power, or of a power in trust, with a right of selection, shall be deemed an advancement to such descendant, within the provisions of the second chapter of this act.” (1 R. S. 737, § 127.)
The plaintiff’s rights are the same as they would have been if his father had never made a will, and had died intestate. (2 R. S. 65, § 49; Id. 456, §§ 62 to 65, inclusive.)
In no case can a child, born after the making of a will
The point has not been made, that advancements, made by the deceased to the defendants of either of them, cannot be considered, in making a distribution of the surplus of the personal estate of the deceased, after payment of his debts, because there was “real estate of the intestate, to descend to his heirs.” (2 R. S. 98, § 78. See also Hicks v. Gildersleeve, 4 Abb. 1.)
It cannot be doubted that every advancement is'a gift, or that every gift is not an advancement. And upon the naked fact that a father buys and pays for land, and has the deed made to his child, the inference of law is, that it is an advancement to the child. (See Proseus v. McIntyre, 5 Barb. 424; Welt on v. Divine, 20 id. 9; 2 Beav. R. 447; Partridge v. Havens, 10 Paige Ch. 618.) And I am of the opinion when a parent conveys land to his child, without asking or receiving any consideration therefor, the presumption is that it is an advancement to the child, though the deed recites a money consideration, and contains an acknowledgment of the payment of it. According "to our statutes, (supra,) if any child • of a deceased person shall have been advanced by the deceased, “by settlement or portion of real or personal estate, the value thereof shall be deemed an advancement, except that “ the maintaining or educating, or the giving of money to a child, without a view to a portion or settlement in life, shall not be deemed an advancement.” (2 R. S. 98, § 78; 1 id. 754, § 26.) Small, inconsiderable sums of money, occasionally given
hfow, within these rules, all the land that the deceased conveyed to his sons William A. and Joseph H.' Sanford, as gifts, without receiving or expecting any consideration therefor, 'and also such land as the deceased paid for, that was conveyed to such sons by third .persons, were advancements. And if the deceased gave his son William A. Sanford #3000 in money or chattels, to start him in business, the same was an advancement. (McRae v. McRae, 3 Bradf. 199.)
The defendants did not give any evidence that conclusively overcame the presumption, that the parcels of land conveyed to them were to he deemed advancements. We must, therefore, hold they were advancements; subject, however, to the question, w’hether the referee committed any error in admitting, or rejecting, evidence respecting the same. For the defendants had the right to prove facts and circumstances to show that such parcels of land were not advancements.
The defendants offered to prove, by the defendant William A. Sanford, who was sworn as a witness in the action, that he overheard a conversation, one new-year’s day, on which day two deeds to the defendants of real estate were dated, and that in such conversation the deceased said to one Benson, “I have this morning made
The plaintiff" proved by one Mellotte, and one G-orrie, that a short time before the death of the deceased, he said to them on different occasions, “I have given each of my sons, (meaning defendants,) $20,000, or $25,000, and I think they have had their share.” The defendants objected in due time to this evidence, and excepted to the rulings of the referee admitting it.
.It is not disputed that the declarations of the deceased, accompanying the conveyance of real estate to the defendants, or accompanying the giving of personal property to them, were competent evidence, as res gestee, on the question whether such real estate, or personal property, were advancements. (Sidmouth v. Sidmouth, 2 Beav. 447. Murless v. Franklin, 1 Swans. 13. Hicks v. Gildersleeve, 4 Abb. 1. 5 Barb. 424.) But such declarations are not admissible to contradict the plain terms and legal intend
There are cases which hold that the declarations of a father, made subsequent to the execution of a deed of land to his son, or of a paper transferring personal property to him, may be proved against the son, to support the presumption that the land, or personal property, was an advancement. But I am unable- to see on what principle such declarations are admissible against the son. And I am so well satisfied that such declarations are not competent evidence against thé son, that I must hold that the declarations of the deceased, in this case, made subsequent to the execution of the deeds to the defendants, or subsequent to the receipt of $3000 by the defendant William A. Sanford, (if he received that sum,) were not admissible evidence against the defendants. The deeds had been executed and delivered to the defendants, and the $3000 had been paid over to William A. Sanford, (if that sum was ever paid him,) before the declarations proved were made by the deceased. They were made when it was not in the power of the deceased to revoke, or alter, either of the deeds, or recover back the $3000, or any part thereof. 1 think such declarations were mere hearsay, and therefore not evidence for the plaintiff. (Brown v. Mailler, 2 Kernan, 118. Levering v. Rittenhouse, 4 Whart. 130.) The admission of those declarations was a' material error against the defendants, which has not been cured, or obviated,
The plaintiff called William A. Sanford as a witness, and proved by him that he wrote and sent two letters to his father, which were put in evidence by the plaintiff’s
I am of the opinion these rulings of the referee were / erroneous. If the $3000, mentioned in the letter of William A. Sanford, was not money, or property, the same was not an advancement to him. The letter, in which the admission was made, was proved by the witness on his direct examination by the plaintiff’s counsel; and matters touching the letter were proved by such counsel, that it would have been difficult, if not impossible, to prove by any other witness. Having proved such admission by this witness, the witness had the right, (being a defendant in the action,-) to explain the admission, though it was in writing, and to entirely do away with its effect against him. If the plaintiff had proved by the witness that he had made a similar oral admission to the
A year, or two prior to the death of the deceased, the defendant William . A. Sanford gave a promissory note, for the payment of $5000, to the order of the deceased and his wife, two years from its date, with interest This note was in the possession of the, deceased at the time of his death. The widow of the deceased presented the note to the appraisers of the personal property of the deceased; and it was appraised as part of his personal estate. The widow testified that she did not know, and "bad not been advised, until after such appraisal was made, what her rights were in regard to the note. It was proper for her to testify to those facts.
The legal presumption was, that the note belonged to the widow, as survivor of the deceased, and was her property, as against all other parties to this action; and it was immaterial whether the consideration for the note was advanced by the deceased, or his wife, to the maker. (Borst v. Spelman, 4 Comst. 284. 16 Mass. 479.)
By the will of the deceased he devised to- his widow^ a dwelling house; also certain personal property, and \ $10,000 in cash; and the will recited, that, “ all which is to be accepted and received by her in lieu of dower, and every and all claim upon my estate.”
Samuel B. Gordon was sworn as a witness for the defendants. He was an attorney and counsellor, and was employed by the deceased to draw his will, and did draw it. Previous to drawing the will, he conferred and advised with the deceased about the terms of his will, and the bequests he wanted -to make. The defendants, William A. and Joseph H. Sanford, offered to prove by Mr. Gordon, that in giving instructions for drawing the will, the deceased first directed him to insert a bequest of
The decision of the Court of Appeals in the action brought on the note by Maria D. Sanford, (widow of the deceased,) against William A. Sanford, (maker of the note,) shows that the second and third grounds of objection above stated were untenable. (See opinion by Peckham, J., MS.) And that decision establishes the fact that the evidence offered was competent and admissible, in connection with other evidence that had been given. The only question, therefore, arising on this offer is, whether the facts and circumstances therein mentioned were under the seal of professional confidence, which the witness could not disclose for the benefit of the defendants, who offered to prove them. This question is unlike either of the questions in the cases relied upon by the plaintiff’s counsel to sustain the decision of the referee. (See those cases in 3 Barb. Ch. 528, 595; 18 N. Y. 546.) The case is not like that of Parker v. Carter, (4 Munf. 273,) in which it was held, that communications made to an attorney employed to draw a deed were privileged. I will
In ascertaining the interest the plaintiff has in the estate, left by the deceased, the case is to be regarded as though the deceased had died intestate, instead of leaving a will. (2 R. S. 65, § 49.) The rule for ascertaining the rights of the plaintiff and defendants is stated in Mitchell v. Blain, (5 Paige’s Ch. 588,) and I need not here state it again.
The allowance of costs to the plaintiff, was a matter within the discretion of the referee.
But, for the errors of the referee I have pointed out,
Judgment reversed.
before Miller, P. J., and Parker and Balcom, Justices. Decided by the same Justices, at the General Term, in the Third Department, at Albany, January 2, 1872.]