93; or that the son had worked for his father, Parks v. Parks, 19 Md. 323; or that the family understood that the advancement was a gift. Johnson v. Patterson, 13 Lea 626. . Parol evidence is, in general, admissible to show the intention of the gift. Dille v. Webb, 61 Ind. 85; Cecil v. Cecil, 20 Md. 153. This is true where land was conveyed for an express consideration (below its real one), Barbee v. Barbee, 109 N. C. 299; or for a nominal consideration. Harper v. Harper, 92 N. C. 300. So, acts of ownership by the father may be shown after the deed made to the son, Sampson v. Sampson, 4 Serg. & R. 329; or other contemporaneous acts going to show a trust. Robinson v. Robinson, 45 Ark. 481. So, parol evidence is admissible to explain the consideration expressed in the deed, Meeker v. Meeker, 16 Conn. 383; although it was expressed to be for love and affection, Sayles v. Baker, 5 R. I. 457; or to rebut the presumption as to a deed by father to son, Dillman v. Cox, 23 Ind. 440; or to rebut a contemporaneous declaration by the father, explaining the omission of some of the children, Hook v. Hook, 13 B. Mon. 526; or to show that a note was given by the son for an advancement, and not a loan, Ruscher v. Knapp, 107 Ind. 340; West v. Bolton, 23 Ga. 531; or by the son-in-law for an advancement to the daughter. Bragg v. Stanford, 82 Ind. 234. So, it is admissible so show a subsequent agreement changing the original note into an advancement, Grey v. Grey, 22 Ala. 233; or a contemporaneous agreement to accept a deed in full of the son's distributive share (although the statute required advancements to be expressed in writing). Long v. Long, 118 Ill. 638. On the other hand, where the statute requires written evidence of intention to make an advancement, it has been held that parol evidence is inadmissible to show that a note given was for an advancement. Barton v. Rice, 22 Pick. 508. So, Porter v. Porter, 51 Me. 376; Fennell v. Henry, 70 Ala. 484. Valuation of advancements. They are to be valued as expressed, in the instrument of gift or receipt therefor, or if no value is expressed, at their value at the time of the gift in Alabama, Arkansas, California, Illinois, Maine, Massachusetts, Michigan, Minnesota, Montana, Nebraska, Nevada, New York, Ohio, Oregon, Vermont, and Wisconsin; or simply as at the time of the gift, in Florida, Georgia, Indiana, Iowa, Kansas, Kentucky, and Mississippi. The memorandum of the intestate is prima facie evidence of the value of the advancement, in Georgia. The value of the advancements is reckoned in the total valuation of the estate for purposes of division only, and is not taken into account in calculating the commissions of the executor. Metcalfe v. Colles, 16 Stew. (N. J.) 148. If not expressed, the value is a question of fact. Crosby v. Covington, 24 Miss. 619. But if the court has once determined the value of the whole estate on a bill filed for the purpose of distributing the personal property, it will be conclusive in a subsequent proceeding for the partition of the property, Torrey v. Pond, 102 Mass. 355. The value is to be determined as of the time when the advancement was made, Warfield v. Warfield, 5 Harr. & J. 459; Clark v. Willson, 27 Md. 693; Ray v. Loper, 65 Mo. 470; Burton e. Dickinson, 3 Yerg. 112; Stevenson v. Martin, 11 Bush 485; Oyster v. Oyster, 1 Serg. & R. 422; Kyle v. Conrad, 25 W. Va. 760; Jackson v. Jackson, 28 Miss. 674; Stallings v. Stallings, 1 Dev. Eq. 298; Meadows v. Meadows, 11 Ired. 148; Lamb v. Carroll, 6 Ired. 4; Raiford v. Raiford, 6 Ired. Eq. 490; King v. Worsley, 2 Hayw. 366; and not at the time of previous possession, Barber v. Taylor, 9 Dana 84; Shiver v. Brock, 2 Jones Eq. 137; and irrespective of the price obtained afterward at a sale before the father's death. Hicks v. Forrest, 6 Ired. Eq. 528. But if the sale was made by the father, and the proceeds were given to the children, they will constitute the advancement and fix the valuation. West v. Jones, 85 Va. 616. So, where the father had previously mortgaged the land and given the son his warranty deed, the son may recover the amount of the mortgage from the estate, but may have to contribute to the same. Polley v. Polley, 82 Ky. 64. The valuation is made at the death of the ancestor, in Kentucky, Hook v. Hook, 13 B. Mon. 526; and in South Carolina. Hughey v. Eichelberger, 11 S. C. 36; Rickenbacker v. Zimmerman, 10 S. C. 110; Ison v. Ison, 5 Rich. Eq. 15; Manning v. Manning, 12 Id. 410; Thomas v. Gage, 1 Harp. Ch. 197; McCaw v. Blewit, 2 McCord Ch. 90. And an advancement in slaves was not affected by their subsequent loss of value by emancipation. Manning v. Manning, 12 Rich. Eq. 410; McLure v. Steele, 14 Id. 105; Ventress v. Brown, 34 La. An. 448; Davis v. Garrett, 91 Tenn. 147; West v. Jones, 85 Va. 616; Fennell v. Henry, 70 Ala. 484; Succession of Haile, 40 La. An. 334; see, however, contra, Davis v. Whittaker, 38 Ark. 435; Mason v. Holman, 10 Lea 315; and it was otherwise in case of emancipation before the father's death. Ex parte Glenn, 20 S. C. 64; Willson v. Kelly, 21 S. C. 535.⚫ The value may be fixed, on the other hand, by the father himself, e. g., by the terms of his will, in which case it cannot be changed by the court. Nelson v. Nelson, 7 B. Mon. 672. In Alabama, the valuation is to be taken at the time of the gift unless it is expressed. Turner v. Kelly, 67 Ala. 173. But the consideration expressed in the father's deed is not conclusive as to the amount, Barbee v. Barbee, 109 N. C. 299; nor is a charge on his books of an estimated value when the property was shown to have been valueless at that time. Marsh v. Gilbert, 2 Redf. 465. On the other hand, where a testator directs the deduction of advancements not exceeding a certain sum, and the actual amount is far less, the legatee will not be entitled to receive the difference. Hutton v. Hutton, 13 Stew. (N. J.) 461. Interest on advancements. Interest is not reckoned on advancements until after the time of the first distribution by statute, in Georgia. Advancements draw no interest, Osgood v. Breed, 17 Mass. 355; Miller's Appeal, 31 Pa. St. 337; Black v. Whitall, 1 Stockt. 572; Moale v. Cutting, 59 Md. 510; Jackson v. Jackson, 28 Miss. 674; Ray v. Loper, 65 Mo. 470; although originally in the form of bonds or notes, changed by the will into advancements, Porter's Appeal, 94 Pa. St. 332; Hall v. Davis, 3 Pick. 450; Green v. Howell, 6 Watts & S. 203; Grim's Appeal, 105 Pa. St. 375; Krebs v. Krebs, 35 Ala. 293; after they are so converted (i. e., after his death). Taylor v. Taylor, 145 Mass. 239. But the father's will may direct interest to be charged, Barrett v. Morriss, 33 Gratt. 273; Fickes v. Wireman, 2 Watts 314; or interest-bearing notes to be reckoned as advancements up to a maximum sum, Wilkins v. Wilkins, 16 Stew. (N. J.) 595; or the "amount of all debts" due to be deducted, Cummings v. Bramhall, 120 Mass. 552; or by requiring an equalization which made it necessary, Davis v. Haywood, 1 Jones Eq. 253; but not by a mere direction to deduct advancements. Nelson v. Wyan, 21 Mo. 347. In Pennsylvania, interest on advancements will be charged by way of set-off against a bequest of income. Estate of Farnum, 16 Phila. 215. In some states the rule is to charge the distributee with interest from the time of the death of the intestate, Johnson v. Patterson, 13 Lea 626; Steele . Frierson, 85 Tenn. 430; Williams v. Williams, 15 Lea 438; Kyle v. Conrad, 25 W. Va. 760; and not earlier, although receipts for money called for interest before that time, Roberson v. Nail, 85 Tenn. 124; or from the time for distribution. Boyd v. White, 32 Ga. 530. So, after the settlement of the estate until actual distribution, although the will directed that no interest should be charged on advancements, Estate of Ford, 11 Phila. 97; or that it should cease at the date of the will. Estate of Sharpe, 13 Phila. 360. In like manner the distributees are not charged with the subsequent natural increase of the property advanced, Stallings v. Stallings, 1 Dev. Eq. 298; Beckwith v. Butler, 1 Wash. (Va.) 224; except after the parent's death, Williams v. Williams, 15 Lea 438; nor with improvements made by the distributee himself, although made in his father's lifetime. Estate of Covin, 20 S. C. 471. Enforcement. A contract on receiving on advancement to release to the others all further claim is enforceable in their favor in equity, Galbraith v. McLain, 84 Ill. 379; and will bar further claim on his part. Havens v. Thompson, 11 C. E. Gr. 383; Cushing v. Cushing, 7 Bush 259; Kershaw v. Kershaw, 102 Ill. 307. So, an agreement to hold the advancement in part in trust for another child. Proseus v. McIntyre, 5 Barb. 424. And where a son who has been advanced his full share becomes administrator, he may be obliged to distribute the proceeds of the estate to the other son. O'Connell v. O'Connell, 73 child or married woman, on repayment of money advanced, will not be enforced against her. Bishop v. Davenport, 58 Ill. 105. Advancements may be set off in a suit for partition of the realty. Green v. Walker, 99 Mo. 68; Pigg v. Carroll, 89 Ill. 205. But distribution of personal property and partition of real property need not be simultaneous in case of advancements made. Hicks . Gildersleeve, 4 Abb. Pr. 1. In general, advancements are not barred by the Statute of Limitations. Hughes' Appeal, 57 Pa. St. 179. And the distributee takes subject to any known lien on the property advanced, Murphy v. Nathans, 46 Pa. St. 508; and he cannot enforce an agreement on the part of the father to make a specific advancement to him. McMahill . McMahill, 69 Ia. 115. The creditors of the distributee are bound by an adjudication as to advancements on the settlement of the estate. Liginger v. Field, 78 Wis. 367. As to the personal estate, the jurisdiction over advancements is universally vested in the Probate Court. In Alabama, the Court of Chancery, acting as a probate court, may require an account of advancements in a proceeding for distribution, Key v. Jones, 52 Ala. 238; or for partition. Marshall v. Marshall, 86 Ala. 383. So, in Maryland, the Probate Court may determine that a deed is an advancement. Stewart v. Pattison, 8 Gill 46. But a court of equity will take jurisdiction (even where the whole subject is within the jurisdiction of the Probate Court) to set aside fraudulent advancements and restrain the administrators from recognizing them as valid. Adams v. Adams, 22 Vt. 50. SECTION IV. The rights of the next of kin of the intestate under the Statute of Distributions.t The 6th section of the statute provides, that in case there be no children or legal representatives of them, in existence, a moiety of the intestate's estate shall be allotted to his widow, and the residue shall be distributed equally among his next of kin in equal degree, and their representatives (7); and by the 7th section, in case there be neither wife nor children, then all the estate shall be distributed among the next of kin, in equal degree; but the same section enacts, that there shall be no representations admitted among collaterals after brothers' and sisters' children. Who are the next The next of kin referred to by the statute, are to be ascertained by the same rules of consanguinity, as those which determine who are entitled to letters of administration (m). of kin; These rules have been already considered in a former part of this treatise (n); but it may be convenient to repeat in this place some of their results. right of the When a child dies intestate, without wife or child, leaving a father, the latter is entitled as the next of kin, in the first degree, to the whole of the personal estate of the intes- father: tate, exclusive of all others (o). If a man dies intestate, without a child, but leaving a *widow, and a father, then the personal estate shall go in moieties between the wife and father (p). right of the mother: 1Jac. II. c. 17: the brothers and So with respect to the mother; before the statute of 1 Jac. II. c. 17, if a child had died intestate, without a wife, child, or father, his mother was entitled, as his next of kin, in the first degree to his whole personal estate: But by that statute, sect. 7, it is enacted, "that if after the death of a father, any of his children shall die intestate, without wife or children, in the lifetime of the mother, every brother and sister, and the representatives of them, shall have an equal share See American note at end of this Section. (1) But see the Intestates' Estates Act, 1890, ante, p. *1359. (m) Lloyd v. Tench, 2 Ves. Sen. 214. 2 Black. Comm. 515. Toller, 381. 4 Burn, E. L. 280, 8th edit. (n) Ante, p. *355 et seq. sisters shall share with the mother: (0) Blackborough . Davis, 1 P. Wms. 51. Ante, p. 359. (p) Keilway v. Keilway, Gilb. Eq. Cas. 190, per curiam. See the effect of the Intestates' Estates Act, ante, p. *1359, in such a case. [*1378] they shall share although the widow: with her." The principle of this provision is, that otherwise the mother might marry, and transfer all to another husband (2). This statute as well as the Statute of Distributions, was described by Lord Hardwicke as very incorrectly penned (r): and several questions have arisen upon the construction of this section with the mother, of it. In Keilway v. Keilway (s), the intestate left no child, but a wife, a mother, three brothers and sisters, and two nieces, the children of a deceased brother: It was insisted, on the part of the mother, that the case was not within the statute of 1 Jac. II. c. 17, s. 7, because here the intestate left a wife; whereas the statute was only meant to operate where the mother, before the making of it, would have gone off with the whole personal estate, and it was urged, on her behalf, that the words of the statute "without wife or children," must be understood "without wife and children;" for it could not possibly be intended in the disjunctive, i. e., that in either case the brothers and sisters should share with their mother, inasmuch as if, after the death of the father, the child should die without wife, but leaving children, they would clearly take the whole, to the exclusion of the intestate's brothers and sisters: But Lord *Chancellor King decreed that the wife of the intestate should have one moiety, and his mother should come in for no more than her share of the other moiety with the intestate's brothers and sisters, and the two nieces, the representatives of the deceased brother: And his lordship laid down, that the intention of the statute was, in prejudice of the mother, that in every case where, before the statute, she would have had the whole, the deceased child's brothers and sisters should come in equally with the mother as to the whole; and where, before the statute, the mother would have been entitled to the half, the deceased child's brothers and sisters should now come in for a share of that moiety. though there be intestate living, In Stanley v. Stanley (t), the intestate left a wife, a mother, and several nephews and nieces, the children of a deceased no brother of the brother: Besides raising the objections taken in the yet if there be above case of Keilway v. Keilway, it was insisted, on they shall share the part of the mother, that the words of the statute of with their grandmother: James are in the conjunctive, "every brother and sister and the representatives of them," and therefore that the statute can nephews, &c., (q) Blackborough v. Davis, 1 P. Wms. 49, by Lord Holt. (r) Stanley v. Stanley, 1 Atk. 457. (8) 2 P. Wms. 344. S. C. Gilb. Eq. Cas. 189. 2 Stra. 710. 2 Eq. Cas. Abr. 441, 442. (t) 1 Atk. 455. |