Dilley v. Love

Miller, J., delivered the opinion of the Court. By our laws of inheritance, it is enacted that if any child or children, or their issue .shall have received from the intestate any real estate by way of advancement, they may elect to come into partition with the other parceners, on bringing such advancement, or its value, into hotchpot with the estate descended, and shall not be entitled to claim a share by descent without so bringing in the advancement, if there be another child or children unprovided for. Code, Art. 47, sec. 31. And by our Statute of Distributions it is declared that if any child or descendant has been advanced by the intestate by settlement or portion, the same shall be reckoned in the surplus for distribution, and if it be equal or superior to a share, such child or descendant shall he excluded, hut maintenance or education, or money given without a view to a portion or settlement in life, shall not be deemed advancement.

Code, Art. 93, sec. 126. The manifest design of these ⁶⁰⁵ provisions is to have justice done to all the children of the intestate, hy equalizing, as near as may be, their respective shares in both his real and personal estate. They do not however, attempt to define what shall constitute an advancement, or to designate the mode in which it shall be made, or the evidence by which it shall be established ; but in these respects, the Courts, both in this country and in England, have uniformly given a liberal construction to such enactments, in order to enforce the cardinal doctrine which they announce, that in all such cases equality is equity. And while to this end, certain general rules have been adopted, yet all the authorities concede that much must depend upon the circumstances of each case.

As said by Baggallay, L. J., in the recent case of Hatfield vs. Minet, (Law. Rep. 8, Ch. Div. 145.) “In all cases in which the question arises whether payments made by a father, who afterwards dies intestate, to or for the benefit of his children, are to be treated as advances, and in that respect to be set-off in making an ultimate division of his property, regard must be had to the surrounding circumstances. The very principle upon which advances are set-off by way of hotchpot, is that of endeavoring, as nearly as possible, to do that which is equal justice among all the children of the dead man.” The case now before us is one in which regard to surrounding circumstances, must have a controlling influence, if anything like justice is to be done to the parties interested.

Tile record shows that Joseph Dilley died on the 16th of March, 1879, at a very advanced age, intestate, and leaving real and personal property, to the value, as we gather from the testimony, of over $100,000. He had five children: two sons, J. Frank, and Barney, and three daughters, Minerva, Margaret and Armida. Of tírese, Barney, and Margaret, who married Benjamin R. Edwards, are now living. J. Frank died in April, 1879, shortly after his father, leaving a widow and three married daugh ⁶⁰⁶ ters.

Minerva married Samuel A. Athey, and died intestate in 1851, (her husband having died in 1849,) leaving-one son now living, and two daughters, one of whom married Eli N. Love, and is now living, and the other married J. Frank Seiss, and died intestate some years since, and before the death of her grandfather, leaving two infant daughters her sole heirs-at-law. Armida, the other daughter, married Dr. John Everett in May, 1844, and died intestate in October, 1866, leaving her husband surviving her, who died in May, 1870, and eight children: five sons and three daughters, all of whom are now living. Barney Dilley obtained letters of administration upon his father’s personal estate, and was proceeding to settle the same in the Orjfiians’ Court, when, in June, 1880, a bill was filed by Mrs. Love and her husband, praying for a sale of the real estate for the purpose of partition, and that the proceeeds of the same, together with the surplus personal estate, after payment of debts, may be distributed under the direction of a Court of equity. To this bill, Barney Dilley, in his own right and as administrator of his father, together with all the other heirs-at-law and distributees of the intestate, were made defendants.

The principal averments of the bill, are that J. Frank Dilley, Barney Dilley, Mrs. Edwards and her husband, and Mrs. Everett and her husband, received from the intestate in his life-time, large sums of money, and other property by way of advancement upon and out of the proportion of the estate, which would be coming to them, respectively upon the death of their father. The answers deny these averments, and to the issue thus made up the greater part of the large mass of testimony appearing in the record has been directed. The several appeals in the case have been taken by parties dissatisfied therewith, from an order ratifying certain reports and accounts of the auditor, making distribution of the personal estate or a part of it. Numerous exceptions have been taken to different portions of the evidence, but many of them are of no im ⁶⁰⁷ portarme whatever, as the testimony objected to has no material influence in determining- any oí' the disputed questions in the case.

There is but one which we deem it necessary to consider, and that relates to the competency of Barney Dilley as a witness. He is a party to the suit as administrator, as well as in his individual capacity, and he has testified upon his own offer. Being thus sued in both capacities, it is insisted that any part of his testimony which goes solely to the question of advancement, and to show what were the intentions o filis father at the time he received certain sums of money from him, is admissible under the decision in Graves, et al. vs. Spedden, et al., 46 Md., 527 . But in that case there was no executor or administrator to the suit, and we cannot set aside the express terms of the Evidence Act.

The language of the law is explicit that where “an executor or administrator is a party to the suit, either party may he called as a witness by his opponent, hut shall not be admitted to testify on his own offer, or upon the call of his co-plaintiff or co-defendant unless he is a nominal party merely,” and in the face of these terms we cannot interpolate a qualification which the statute itself does not recognize. The Court below was therefore clearly right in sustaining the exceptions taken to the testimony of this- witness; hut how much of it is thereby excluded? Clearly only those portions excepted to. In Johnson and Wife vs. Heald, Ex’r, ( 33 Md., 352 ,) the exception was to the whole testimony of the witness upon the ground of her incompetency to testify at all in the case, hut here the exceptions taken by the complainants are confined to certain questions and answers upon the ground that the witness was incompetent to testify as to such matters.

This leaves a large portion of his testimony still remaining as evidence in the cause, for we take it to he clear that if an administrator, a party to the suit, sees fit to go upon the stand and testily for himself on his own offer, and in the course of that testi ⁶⁰⁸ mony makes admissions, or gives evidence which, the other party is willing to accept, it is competent for such party to waive the statutory exclusion pro tanto, and confine his exceptions to such portions of the testimony as make against him, or as he may deem objectionable. This, as we understand it, was the view of these exceptions taken by the late Judge Peakre in his very able opinion which appears in the record. He evidently so treated the exceptions and considered the large part of the testimony of Barney Dilley, which was not excepted to, as evidence in the cause. In so doing he, in our judgment, committed no error, and his opinion is not therefore open to the •criticisms in this particular, made upon it by counsel in argument; and this brings us to the consideration of the two principal questions in the case. 1st.

Are the various "sums of money,and portions of property received by the several heirs and distributees from, or paid to or for them by, the intestate in Lhis lifetime, to be regarded and treated as advancements, or as creating debts, or as mere gratuities or absolute gifts ? 2nd. What amount has, in -point of fact, been so received by, or paid for and on account of, these several heirs or distributees respectively? First. We have found no evidence in the record that the advances conceded or proved to have been made by the intestate, were intended by him as mere gratuities or absolute gifts to his children or grandchildren, and the question therefore is did they constitute as between him and them advancements or debts?

By the decision in Graves, et al. vs. Spedden, et al., and the other adjudications of this Court there cited, it is settled that in this State, as in England, a gift of money or property by a parent to a child is presumptively an advancement, but that this presumption may be repelled by evidence proper for the purpose ; in other words whether such a gift takes the character and legal properties of an advancement, or ⁶⁰⁹ those of a full and absolute gift without a view to a portion or settlement, depends on the intention of the donor, and that intention may be ascertained by parol evidence of the donor's declarations at the time of executing the conveyance or making the gift, or of the donee’s admissions after-wards, or by proof of facts and circumstances from which the intention ma,y be inferred. In that case the question was whether the donations were advancements or absolute gifts. In the more recent case of Harley vs. Harley, et al., 57 Md., 340 , the question was between advancement and debt. In that case the father took and held notes of one of his sons, and the Court say, the taking and holding the notes in the form we find them, without any contemporaneous written entry or memorandum to explain the transaction, gave rise to the prima facie, if not conclusive presumption, that at the times the notes were taken, they were taken for debts due according to their legal import, and not for advancements made to the maker.

This being the legal presumption from the face of the notes, the onus of proof is on the party who sets up the advancement, to show by clear and indubitable proof, that what is so clearly apparent to bo simply a debt due, was intended, either originally or subsequently to be cm advancement instead of a debt. The proofs relied on to establish the advancement wore certain declarations of the intestate to other members of his family, as to his intention or purpose to treat the debts due from his son as advancements with reference to the general division of his estate. But these declarations were never assented to by the son, or even brought to his knowledge during the life-time of his father, and appear to have been made more to appease the complaints and apprehensions of his other children in regard to the division of his estate, than anything else. And the Court accordingly held that such loose declarations not substantiated by writing, nor made to the son, nor assented to by him, nor accompanied by any act, were not ⁶¹⁰ sufficient to destroy a debt secured by a legal instrument in full force, and to change it into a gift by way of advancement.

The law as thus stated must, of course, control our decision of other cases unless the facts make them essentially different. But, in our opinion, the present case discloses a state of facts easily and clearly distinguishable from that in Harley vs. Harley, et al. We have carefully examined the testimony contained in the record, but it is too voluminous to be reviewed in detail. It shows that the intestate, a man of large means, was generous and liberal to his children and grandchildren. To some of them he furnished money to start them in business, and also relieved them from embarrassment by paying their debts, and these and the like benefactions continued from the time his daughters were married, and his sons grew up to manhood, down to the last years of his life.

At times he would scold them for their improvidence, hut in most cases yielded to their requests,, and never failed to relieve their necessities. But while he was thus generous he was also just. He had no favorites but desired that all his children and grandchildren should share his estate equally, as the law provides; and he adopted a plan which he thought would secure this equality of distribution. He knew he was giving and would have to give more to some than to others, and he therefore exacted and took from them their notes for the several amounts so from time to timé advanced to them respectively.

He did this, to use his own language, “ so-that some should not get all and others nothing, and he would have the notes in proof against them; and he intended the amounts of these notes to be talcen from each one that had gotten money, after he was dead.” The proof does not show that he said this to each one, on each occasion and at the exact time the advance was made, but it does show that he did so on more than one occasion, and frequently repeated it to them afterwards; and that they ⁶¹¹ liad frequent talks with each other and with him on the subject, so that his purpose and intention in this respect were perfectly well known and understood in the family and by all the recipients of these bounties. In fact the reading of the testimony has forced upon us the convictiou that each of these parties when he thus received money and gave his note therefor, know that he was receiving by anticipation a part of his share of the intestate’s estate, and that such was the intention of the donor at the time. This intent he declared upon every suitable occasion, adhered to it to the time of his death, and omitted to make a will only because lie was assured the law would give effect to bis well-known aftd well understood purposes without a will. In view of such evidence it must be held that he took and preserved these notes as memoranda of amounts, and not as evidences of debts to he enforced against the makers.

He was the owner of the property and liad the sole right to determine the purpose for which he gave it. In fact the question of advancement is in all cases dependent entirely upon the intention of the donor. That intention can, in a case like this, be ascertained only from his declarations, and where they are clear, explicit and unqualified, Courts should not hesitate to receive them as evidence, and give them effect. The declarations of Mr. Dilley made from time to time, to other