Grey's Heirs v. Grey's Adm'rs , 22 Ala. 233 ( 1853 )

LIGON, J.

1. An advancement, in the sense in which it is employed in our statute in relation to distributions, may be defined to be a provision, made by a parent for his child, of money or property, the entire interest in which passes out of the former in his lifetime; though it is not requisite, in all cases, that it should take effect in possession before the death of the parent. 2 Williams on Ex’rs, 923; 2 P. Wms. 440; Toller 380; 2 P. Wms. 445.

If the parent let the child have' money, and take his note for the sum so due, it will be conclusive that, at the time the transaction took place, it was a loan, and not an advancement.

The notes in the case under consideration, as appears by the bill of exceptions, were offered by the administrator, and received by the court, "as evidence of an advancement.” This was clearly erroneous. The notes, of themselves, are evidence of nothing, except that Daniel was indebted to the intestate in the sums severally secured by them ;• and the fact that they were held by the deceased at the time of his death, with no marks of cancellation, or memoranda indicating that he had parted with his interest in them, or in the money, the payment of which was secured by them, tends strongly to show that no advancement was intended, and that they are assets in the hands of the administrator.

2. But this presumption may be rebutted by parol proof, if the facts relied on relate to an agreement, either verbal or written, entered into by Daniel and tbe intestate after tbe notes were made, and wbicb would show that tbe intestate bad parted witb all interest in tbe money secured by tbe notes, to make a provision for bis daughter and ber busband. For this purpose tbe court might well admit parol evidence.

Tbe bill of exceptions does not set out tbe parol evidence given in tbe court below, and consequently we cannot say that it erred in receiving it. It merely states that witnesses were offered to show that tbe intestate intended tbe amount secured by tbe notes before mentioned as an advancement to Daniel. But tbe facts deposed to by them, by wbicb such intention was evinced, or from wbicb it was to be inferred, are not given. Whether they were of tbe class just named, or whether they related to matters occurring before or at tbe time tbe notes were made, we are wholly uninformed. If they were of tbe former class, there was no error in admit-ing them to be proved by parol; but if of tbe latter, they were inadmissible, under tbe familiar and inflexible rule wbicb declares, that if a written instrument is perfect in itself, it must be tbe sole expositor of tbe intention of the parties to it; and parol proof of an agreement between them, not reduced to writing, wbicb is repugnant to tbe terms and intention expressed in tbe written instrument, cannot be allowed. Walker v. Clay & Clay, 21 Ala. Rep. 797; West & West v. Kelly’s Ex’rs, 19 Ala. Rep. 353; Long, Adm’r, v. Davis, 18 Ala. Rep. 801. Neither would it avail to show, by parol, an unexecuted intention on tbe part of tbe intestate to make these debts an advancement to bis son-in-law. Such an intention would neither divest tbe right of tbe intestate in bis lifetime, nor bis administrator after bis death. Tbe notes would be assets in tbe hands of tbe latter, wbicb be would be bound to administer.

As tbe plaintiff here has not affirmatively shown error in this part of bis case, we cannot presume it.

3. Tbe witness James D. Grey is not, in our opinion, incompetent on tbe score of interest. He bad voluntarily abandoned bis interest in tbe estate of bis father, and this abandonment is of record. He cannot be allowed hereafter to set up a claim to any portion of tbe estate in tbe bands of tbe administrator. He is not liable for costs, as tbe expenses of administration and distribution are paid out of the funds of the estate. He has no interest in the fund on which the costs are properly chargeable, for, as we have said before, he has wholly released and abandoned whatever interest he ever had in the estate of his father, and this release and abandonment has been spread upon record, and must forever estop him from setting up any claim to distribution. It is true he is a debtor to the estate, from all that appears on this record, to the amount of his note exhibited by the administrator; but this cannot affect his competency as a witness in a litigation between a distributee and the administrator, relative to the portion of the former. Our conclusion, therefore, is, that the court did not err in permitting him to testify.

For the error first noted, the judgment of the Probate Court must be reversed, and the cause remanded.