Sherwood v. Smith

| Conn. | Jun 15, 1855

Waite, C. J.

If Jeremiah Sherwood had conveyed the property to his son, as an absolute gift, he could not afterward, without the consent of his son, convert that gift into an advancement, although at the time of the transfer, it was competent for him to give it either character, as he pleased. The right to charge, as an advancement, must exist at the time, of the conveyance.

Nor could he deprive his son of a full distributive share of his estate, upon his dying intestate, by merely charging him with a sum, as an advancement, without the transfer of any property. For although it was competent for him to direct in what manner his property should be distributed, after his decease, yet he could do it only by will, executed in the manner required by law, and not by a simple entry on his book.

Children can only be charged with advancements, who, in the language of our statute, “have been advanced by settlement, or portion,” and in the absence of any special agreement, to the extent only of the value of the property given.

It has been holden that a father may convey property to a son, partly as a gift, and partly by way of advancement. Could he, after a conveyance so made, charge the whole as an advancement? Clearly not. Meeker v. Meeker, 16 Conn. R., 387.

A son might be willing to receive property as a gift, which he would prefer not to take, as a part of his portion in his father’s estate. He might be willing to receive a collegiate education, if the expenses were borne as a gift, when, if they were to be charged to him as an advancement, he might prefer having the amount in a different form.

Although the property, in the present case, was originally given and charged to the son as an advancement, yet, by their subsequent arrangement, that conveyance was converted into an absolute gift, and from' that time stands in the same situation, as if it had originally been so given. And in our opinion, it was no more in the power of the father, by his single act, to change the character of the conveyance, than to rescind it.

If the decree of the court of probate, for the reasons stated, is to be set aside, a further enquiry arises, attended with no little difficulty, and that is, to what extent is it to be vacated?

That court has found, not only that? -ellants are ehargeable with an advancement, but that the appellees are chargeable in like manner; and the superior court has further found, that it was not the intention of the deceased to make any of his children so chargeable, unless all were.

The appellants only have appealed, and if the decree is set aside, so far as it relates to them, and left in force as to the appellees, manifest injustice will be done. Hence the question arises, whether a decree can be set aside, in favor of a party that has taken no appeal. This we think could not be done, were the rights of the appellees affected by a decree, distinct and independent of the one of which the appellants complain. But in this case, all the doings of the court of probate, in relation to the advancements, are embraced in a single decree, in which there is error; and although it might be competent for the superior court to disaffirm it in part, with directions to the court of probate as to further proceedings, yet we are inclined to the opinion that the whole decree ought to be set aside, and we so advise the superior court.

In this opinion the other judges concurred.

Decree of probate to be reversed.