26 Vt. 665 | Vt. | 1854
The opinion of the court was delivered by
We are satisfied that the testimony offered by the appellants in relation to the declarations of the intestate, was properly rejected ; whether those declarations were made at the time the entries were placed on the book, or at any time afterwards. The principle of its exclusion is the same, whether the question,
A more difficult question arises in this case, whether the book of the intestate itself, furnishes sufficient evidence that these charges were intended as advancements, and to be treated as such in the distribution of the intestate’s estate. The true idea of an advancement, is a delivery by the parent during his life, to one or more of his children, the whole or a portion of that, to which the child would be entitled, on a distribution of the estate after the parent’s decease. It is distinguishable from a gift, which parents may make to their children, whether to a greater or less amount; for in such case, there is no intention to have it chargeable on the child’s share of the estate. It is also to be distinguished from a debt; for in the case of an advancement, the common relation of debtor and creditor does not exist. The property was not delivered or received as borrowed capital. Osgood v. Breed, 17 Mass. 359-93. 4 Pick. 21. In the case of charges on book, or memoranda made by the intestate, those circumstances must be disproved. The inference must be fairly drawn from the book itself, that an absolute gift or a debt was not intended. If that appears the legal intendment will be, that the property was delivered as an advancement. In the cases of Brown v. Brown, 16 Vt. 204, and Bulkley v. Noble, 2 Pick. 340, it was held, “ that no particu- “ lar form of words is required to show an advancement; an en“try on the books of the intestate of property delivered to a " child, made in such a manner as to exclude the idea of a debt, “ is evidence that it was intended for an advancement.”
In the present case, it is quite manifest that an absolute gift was not intended by the intestate. If such had been the intention, those entries would not have been made on book; nor would the word “ Dr.” have been entered against the charges. The fact that the several heirs are charged with these different sums as “ Nr.” is a circumstance to show that a debt was intended, and if