Harley v. Harley

Alvey, J., delivered the opinion of the Court. Otho J. Harley died in December, 1871, intestate, leaving several children surviving him. He was seized at the ³⁴¹ time of liis death of certain real estate, and that real estate has been sold under a decree, and a part of the money arising from the sale is in Court for distribution among the heirs-at-law of the deceased. And, in the matter of distribution, questions have arisen whether one of the children had not been advanced by the intestate in his life-time, and whether such advancements should not he brought into hotchpot with this fund arising from the sale ol’ the real estate, in order to equalize the distribution among the heirs.

At the time of the death of the intestate he had in his possession three promissory notes made by his son, George W. T. Harley; two of them were made payable to the intestate himself, and the other was made to Josephus E. Harley, and by the latter transferred to his father the intestate. The first of these notes is dated April 1st, 1869, for $418, payable six months after date, to the order of the payee, with interest from date; the second is dated August 12th, 1871, for $680, payable six months after date, to the order of the payee, with interest from date ; and the third note is dated the 12th of December, 1870, for $2591, payable six months after date to Josephus E. Harley, or order, with interest from date. This latter-note was secured by mortgage: and on the 23rd of November, 1871, hut a few days before the death of the lather, and during the illness of which he died, this note was transferred to him, by written transfer, and the father gave his note to the son, for the amount due on the note thus transferred, principal and interest. The amounts of these three notes are the sums that are alleged to have been advanced by the intestate to his son, George W. T. Harley.

At the time of the death of the intestate, George W. T. Harley, the son, was largely indebted to various persons, by judgments and otherwise, and was wholly insolvent. He denies utterly that his indebtedness to his ³⁴² father was ever intended as advancements. He insists that his pecuniary relation with his father was that of debtor and creditor simply; and that he never understood or supposed for an instant, from anything said or done by his father, that the money due on the promissory notes given to the latter was intended as advancements; and that he never knew that'the note given to his brother Josephus had been transferred to his father until after his father’s death. That he had paid the interest on the notes given to his father; and that all three of the notes were treated by the administratrix of the estate, who was the widow of the deceased, as debts due the estate, and were so returned under oath to the Orphans’ Court; and that no claim or pretence was set up that the notes were to be treated as mere evidence of advancements made by the. father to the son, until the question arose upon the distribution of the proceeds of the sale of the real estate.

An advancement, in legal contemplation, is simply the giving, by anticipation, the whole or part of what it is supposed the child or party advanced would he entitled to receive on the death of the party making the advancement. It does* not involve the elements, of legal obligation or future liability on the part of the party advanced, hut it is a pure and irrevocable gift, and must result from a complete act of the intestate in his life-time, by which he divests himself of all property in the subject, though in some cases, and under some circumstances, it may not take effect in possession until after the intestate’s death. Clark vs. Wilson, 27 Md., 700 ; Edwards vs. Freeman, 2 P. Wms., 440, 446 ; 2 Wms. on Ex’rs, 1289, 1291-2. In this, case, the taking and holding the notes in the form we find them, without any contemporaneous written entry or memorandum to explain the transaction, give rise to the prima