Merrill v. Rhodes , 37 Ala. 449 ( 1861 )

A. J. WALKER, C. J.

The entire evidence of the witness, Jones, which the court excluded, was admissible. It consisted of the declarations of the deceased parent 'of the parties, as to his intention in reference to the question of advancement; which declarations were 'made at the time of the gifts, the character of which is in controversy. The rule is, that the law presumes gifts from the parent to his child to be advancements, unless the contrary appears from the nature of the gift. But this presumption may be rebutted ; and the contemporaneous declarations of the donor are admissible for that purpose. — Mitchell v. Mitchell, 8 Ala.-414; Slitter v. Mer. Ins. Co., 14 Ala. 777; 3 Grreenl. Ev. § 366 ; 2 Phil. Ev. (C. & H. notes, ed. 1859,) 705. That part of the declarations proved by the witness Jones, which had reference to other gifs of property, the character of which seems not to have been directly involved, contributed, in the connection in which they were spoken, to show that the making of the gifts at that time, with the intention that they should not be advancements, was carrying out the fixed and general policy of the donor; and in that point of view, if in no other, were admissible. The reasons above stated are alike applicable to the testimony of Mrs. Merrill, except so far as it had reference to the past declarations of the donor.- As to antecedent declarations of the donor, we do not deem it necessary to decide any thing.

Decree reversed, and cause remanded.