Storey's Appeal, 83 Pa. 89

Storey's Appeal

83 Pa. 89 | Pa. | 1877

Mr. Justice Woodward

delivered the opinion of the court in both appeals, January 2d 1877.

Storey’s Appeal.

On the 4th of March 1869, Oliver David held íavo judgments against W. 0. Adams, the father of the appellants, amounting to about $7000. On that day a deed for 159 acres and 115 perches of land Avas executed by Mr. Adams to the appellants, who were grandchildren of Mr. David, and thereupon the judgments were satisfied. A provision for his granddaughters Avas thus made by the grandfather by the conveyance of real estate to them for which he paid. This Avas, primd facie, an advancement under the 16th section of the Act of the 8th of April 1833. It Avas so treated by the auditor and the court beloAV upon what is believed to have been entirely adequate evidence. In support of the presumption, there was affirmative testimony of the intention of the grandfather in the statement of John M. Thompson, that some months before the transaction was concluded, Mr. David had an assignment of the judgments prepared, with the view of transferring them to J. D. McJunkin in trust for the appellants, which was recited “to be an advancement to said Ada and Anna Lanah, and to be accounted for by them in the distribution of his estate.” The land was conveyed for the expressed consideration of $7000, and the judgments were satisfied. The principle is not conceivable upon which the auditor would have been justified in upturning the adjustment and entering upon an inquiry into the validity and consideration of the judgments.

The third and fourth errors relate to details in the proceedings before the auditor, and have not been pressed in the argument.

The question raised in the fifth assignment regarding the application of the 16th section of the Act of 1833, has been fully discussed in Julia E. J. Boyd’s Appeal this day decided.

Decree affirmed, and appeal dismissed at the costs of -the appellants.

Boyd’s Appeal.

James Campbell, administrator of Oliver David, deceased, whose account has been brought up from the Orphans’ Court, was shown by the evidence before the auditor to have given a sealed note for $5300 to Mr. David in the year 1842. About the year 1865, Mr. Campbell called Mr. David’s attention to it. He said: “ You have my note, it is dead.” Mr. David replied, “ it is of no account,” and adding, “ you may do what you please with it,” gave it to Mr, *96Campbell who then destroyed it. This was the only evidence on the subject. The auditor and the court below refused to charge the accountant with the amount of the note, and for this the first error of the appellant has been assigned. The conversation resulting in the destruction of the instrument was about twenty-three years after its execution. Both parties treated it as having become valueless by lapse of time. The creditor had the right to give it up, and it is too late now for his heirs to assert an obligation he saw fit to cancel.

In restating the account of the administrator, the auditor credited him with the amount of a note of John M. Thompson for $1998.75, with which he had charged himself by mistake, it being unpaid and subject to set-off. To this decision an exception was taken, which the Orphans’ Court dismissed. This is the ground 'of the second error. In passing upon this and some other items, the auditor added this note: “ These credits not being absolute credits, but to be charged or accounted for in final account.” An inquiry into the merits of the assignment would now be premature. The claim can await future investigation.

The third error has been assigned to the decree of the court confirming the auditor’s decision in refusing to charge as an advancement to Mrs. Lauretta Thompson the sum of $2500, the proceeds of the Middlesex farm conveyed to her by James Campbell, for which Mr. David paid. On the 5th of November 1871, Oliver David died intestate without surviving children, but leaving ten grandchildren. Six of these grandchildren were the children of a deceased daughter who intermarried with James Campbell, the accountant. Their names were William O., T. Chalmers, J. Thompson, Howard J., Margaret A., now Margaret A. Junkin, and Clara Bell Campbell. Two of the grandchildren, Ada V. Adams, now Ada V. Storey, and Anna Lanah Adams, were the children of another deceased daughter, who intermarried with W. C. Adams. And the two remaining grandchildren, Lauretta Campbell, now Lauretta Thompson, and Julia E. J. Boyd, the appellant, were the children of a third deceased daughter, who intermarried first with William Campbell and afterwards with Henry Boyd. The auditor ascertained the amount of the estate to be $65,300, and the share of each of the ten grandchildren to be $6530. The amount for distribution, however, included $7000 charged for advancements to Mrs. Storey and Anna Lanah Adams.

At the outset, a question has been raised involving the construction of the 16th section of the Act of 8th of April 1833. The provisions of that section in relation to advancements are limited to the case of “ any child of the intestate.” The facts in Eshelman’s Appeal, 24 P, E. Smith 42, were not identical with those developed here, for the decedent there had left surviving children. But advancements had been made by the decedent to a grandson after his father’s *97death, and it was held that his share in the distribution of his grandfather’s estate was subject to charge for those advancements. Nothing need be added to the authorities collected in that case, and nothing to the reasoning of Judge Mercur, to prove that iii construing a statute the real intention will prevail over the literal sense of the terms; that if the expression of a statute be special but the reason general, the expression will be deemed general; and that the provisions of the 16th section of the Act of 1838 apply not only to children but to grandchildren who have been advanced. It may be observed, however, that the right of grandchildren to inherit as next of kin where no children survive the decedent is derived from the same statute that creates the charge for advancements against children. They take per capita under the terms of the second clause of the second section of the Act of 1833. They are placed, as principal heirs, in the precise position of children, and bearing the same relation to the decedent, they are subject to the same duties and liabilities. There are stronger reasons why a grandchild should be chargeable for advancements where he inherits as next of kin than where, as in Eshelman’s Appeal, he takes through a deceased parent by representation.

In 1843 or 1844, James Campbell made a deed for land in Middlesex township to Lauretta Campbell, now Mrs. Thompson, for a recited consideration of $2500. There was proof, however, and the auditor has found, that the true consideration was $2000, and consisted in the discharge by Mr. David of a debt due him from James Campbell, the grantor. Mrs. Thompson was then a child, and her parents had recently died. She became a member of the family of her uncle, James Campbell, who reared and educated her. At the time when the arrangement for the conveyance was made, Mr. David told Mr. Campbell to make the deed to Lauretta, that “it would help to support and educate her.” He told Mrs. David that he had given Lauretta a farm,' and shortly after the death of Mrs. Thompson’s mother, he said he “was to pay James Campbell for her raising.” This is all the evidence the record contains on the subject of the gift. Where real estate is conveyed by a father to a child, the legal presumption is that it is intended to be an advancement. To overbear this presumption there must be proof of distinct explanatory facts. Thus it was ruled in Dutche’s Appeal, 7 P. F. Smith 461, that “ a conveyance of land by a lather to a child directly, or by payment of the purchase-money, and having the deed made to the child, is primá facie an advancement ; and this presumption is greatly strengthened when the value of the land bears any considerable proportion to the father’s whole estate.” There the value of the estate was about $48,000. The decedent had conveyed real estate in his lifetime to three of his children. The value of that conveyed to George E. Dutche was $7805; of that conveyed to Sarah B. Lewis $4780; and of that *98conveyed to Rosanna R. Wendell $550. There were four children, and the distributive share of each was about $12,000. The conveyances were held to be advancements, notwithstanding evidence by one witness that the intestate had said that he intended to give a house to each of his daughters ; by another witness, who drew the deeds, that according to the best of his recollection it was meant as a gift; and by two witnesses who testified to the intestate’s declarations in his last illness that he wished his property sold, and the money equally distributed among his four children. It was held that there was nothing in the case to rebut the presumption that the deeds were advancements. It has been urged that Mr. David stood by legal relation in loco parentis to Mrs. Thompson, and that the gift was necessary for her support and education. But he never accepted the imputed relation, and the gift was never used to carry the assumed purpose into effect. She was in fact maintained from infancy to womanhood by Mr. Campbell, and the estate conveyed to her remained untouched. Its value was $2000, nearly one-third of the distributive share to which it was eventually proved she was entitled. The proportion was significant enough to intensify the presumption that springs from a gift of land. The evidence was too vague to overthrow the presumption, and the Orphans’ Court should have decreed that the conveyance was an advancement.

In the hearing before the auditor, it was shown that J. Thompson Campbell, one of the distributees, had received the sum of $4000 from his grandfather in 1865 or 1866. Alleging this to have been an advancement, the appellant asked that it should be charged against his distributive share. The auditor decided that the donor intended it to be a' gift. So much of the decree below as sustained the decision of the auditor is the subject of the fourth error. When the money was received, J. Thompson Campbell employed it in establishing a mercantile business in Allegheny city. The only evidence of what occurred at or about the time when the money was delivered, was the statement of James Campbell, that Mr. David said he had some money not invested that he intended for, or intended to give Thompson. Mrs. Wells testified that Mr. David told her at one time that he had given Thompson Campbell $4000. “ All questions of advancement,” it was said by Sergeant, J., in Daniel King’s Estate, 6 Whart. 370, “must depend on the intention of the parent in making the gift. If there be no evidence at all on the subject, then whether it was an advancement or a present may be judged of by its amount and character.” Here, the money was given by the grandfather to the grandson to enable him to enter on what was designed to be the permanent business of his life. It was nearly equal in amount to two-thirds of his share in the distribution. There was no evidence of what occurred when the money was actually transferred. Indeed, it may be said that there was no evidence at all to indicate the donor’s *99intention. He would have used the same words in his conversation with Mrs. Wells, whether he designed the gift to be an advancement or a present. The purpose to which the money was to be devoted, and its amount, are enough to create the implication of an intention to treat the gift as an advancement. In Lentz v. Hertzog, 4 Whart. 520, Judge Rogers said: “ The maintaining and education of a child, or the gift of money, without a view to a portion or a settlement in life, is not deemed an advancement. It can make no difference whether the child to whom the portion is given, is at the time married or settled in life, or is about to enter into that state. If it is intended as a provision or portion of his father’s estate in anticipation, he must account for its value before he can entitle himself to a distributive share of the estate which remained of the father at his death.” Lawson’s Appeal, 11 Harris 85, relied on at the argument here, was a very different case from this. Various witnesses testified there to repeated declarations of the father that he had “presented the property to his sons.” And it was said in the opinion of this court, that “ he had made valuable presents to his married daughters, and it is reasonable to infer, that what he gave to start his sons were intended in the same manner to be gifts.” Some strength is added to the view insisted on by the appellant by the fact that a gift of $2550 which Mr. David made to William 0. Campbell, was accompanied by the statement that it was “ a donation, and not to be counted up in the settlement of the estate.” This was some evidence that he had a future adjustment of equities amongst his grandchildren in contemplation. The gift to J. Thompson Campbell should have been treated as an advancement, and the fourth assignment of error is sustained.

There is no merit in the fifth assignment. The appellant refused her assent to the purchase of the widow’s interest. The purchase was made by the accountant with the funds of the other distributees, and at their risk. The appellant will receive her full share in the distribution of the decedent’s estate. The profit of $683 is justly divisible amongst the parties by the investment of whose moneys it was earned.

The decree of the Orphans’ Court is reversed; and it is ordered and adjudged that the record be remitted for re-distribution, wherein Mrs. Lauretta Thompson shall be charged with $2000, and J. Thompson Campbell shall be charged with $4000 as advancements to them, respectively; and that the costs of this appeal be paid out of the fund for distribution.