Wallace v. Reddick , 119 Ill. 151 ( 1886 )

Mr. Chief Justice Scott

delivered the opinion of the Court:

Andrew.Wallace died intestate December 25, 1874, seized in fee simple of the lands described in the bill. Esther Wallace, his widow, survived him, but has since departed this life, so that the lands of which the intestate died seized have descended to his heirs-at-law as an absolute and unincumbered estate. There were seven children—four daughters and three sons—born unto the intestate, some of whom died before his death occurred. All of the sons and one daughter are now dead. The bill in this case was filed by the surviving daughters and the representatives of the deceased daughter, against the personal representatives of the deceased sons of the intestate, for the partition of the lands of which the'intestate died seized. It is alleged, the intestate made no advancements to either of his daughters, but that he did make advancements to each of his sons, of lands particularly described, the value of which, it is charged, is far in excess of what the sons or their heirs should receive from his estate. The answer admits the death of the intestate, and that the heirs and the rights of the parties are correctly stated in the' bill, except as to the matter of advancements. It is denied the sons of the intestate were advanced, and it is denied that any conveyance of land to the sons from their father was received by them as an advancement, or charged to them as such by their father. A general replication filed, put these material allegations of the answer at issue. On the final hearing, upon the evidence submitted, the circuit court found advancements had been made to two-of . the sons in excess of the share of the estate of the intestate that they would otherwise have been entitled to; and as to the other son, it was found the advancement to him was not equal to his share in the estate, and for the deficit, provision was made in the decree, and the residue of the estate was directed to be divided among complainants according to their respective interests therein, as set forth in the bill,

It is seen, it is denied the conveyances of lands by the intestate and his wife to the ancestors of defendants were made as advancements, but it is asserted that each and every conveyance was made upon valuable considerations, and not’ in any manner or way as an advancement to the grantees named in the several deeds. It is upon these denials of the allegations of the bill in that respect that the whole controversy hinges. Questions of fact and law are therefore involved. The case naturally falls into two parts: First, whether any advancements were made to the ancestors of defendants, either in lands or other property, by the intestate; and second, can such advancements be charged against any interest defendants might otherwise have had in the lands sought to be partitioned.

As respects the first branch of-tha-case, it is, of course, a •question of fact whether any advancements, of lands were made to either- son;- and - concerning which the evidence is by no means either clear or satisfactory. Most of the deeds to the sons bear date back of 1856. One is dated March 9, 1842, two or three in 1850, and others still later, and one perhaps as late as 1861. It will be observed that in all of the deeds, except perhaps one, it is recited such deed was made upon a money consideration. In some instances the consideration is nearly or quite equal to the value of the land at that early date, but.in others the consideration stated is evidently below the real value of the lands.-' There is nothing in the deeds, save the one, that indicates the conveyances were made either as gifts or advancements. Whether a gift by a parent to the child was to be'deemed an advancement, depended upon the intention of the donor. It seems to have been so held in all the decisions rendered in this State prior to the act of 1872 on the subject. What is an-advancement ? It is the giving by a parent to the child or heir, by way of anticipation, the whole or a part of what' it is supposed the donee will be entitled to on the death of the party making it. The very act of making an advancement implies the exercise of judgment,—intention to do a thing that may have a future effect. In the making of a gift, no exercise of judgment as to results that may follow in the future is involved. It is therefore more accurate to say, that whether a gift is to be deemed an advancement, under the law as it was prior to the act of 1872, depended upon the inténtiori of the party making it, to be gathered from the attending circumstances. As before stated; neither deed made by'the intestate show's the land conveyed was intended as a mere gift, with the possible exception of one dated January 25, 1861, and it may be confidently stated, none of them show the land conveyed was intended as an advancement. Resort is had to subsequent verbal declarations to show the intention of the intestate ancestor in making the several conveyances to his sons. Most of the declarations proved were made to persons having no interest whatever in the subject matter of the conversations, and now, long years after they were uttered, and long since the death of the party making them, they are reproduced as testimony. If it be conceded such declarations are competent evidence, it is certainly a most unsatisfactory class of testimony.

It is proved the common ancestor made gifts of land to his sons, but it can hardly be said there is any satisfactory evidence he intended such gifts should be, in whole or in part, of what he supposed the donees would be entitled to out of his estate at his death. It appears, on the marriage of the daughters, small gifts were made to each of them, in property, or what W'as thought to be its equivalent in money. It was never intended these, gifts should be deemed advancements, nor were they ever charged to the daughters as such. It may be the intestate made gifts to his sons, both of money and land, much larger and more valuable than anything he bestowed upon his daughters. It is a matter well understood, that a belief existed in the common mind, as it had been incorporated in the constitutions of many peoples centuries ago, that the sons were entitled to “a double portion of the inheritance.” Happily that- doctrine has ceased to be regarded either as law or a rule of action, or even as common justice. Under that common understanding that had obtained over many minds the consistency of law, it may be the intestate made larger gifts to his sons than to his daughters, and intended to do so in accordance with his notions of justice, however erroneous that notion may have been, and with not the slightest intention to cjiarge them with such gifts as advancements.

Taking the most probable view of the testimony, it establishes no very strong equities in favor of complainants, and certainly it- is not shown by any testimony entitled to any great weight, even if admissible at all, that the intestate made gifts to his sons, by anticipation, of the whole or a part of what he supposed would be the share of the donees in his estate when it should be distributed among his heirs.

But the reversal of the present decree may be placed on a ground that seems to be unanswerable. It does not appear the gifts or grants it is claimed were made by -the intestate to the ancestors of defendants-were expressed or charged in writing to-be advancements, nor were they so acknowledged in writing by the donees.to be advancements. Section 7 of the act of 1872, in regard to the descent of property, declares : “No gift or grant shall be deemed to have been made as an advancement unless so expressed in:writing, or charged in writing, by the intestate, as an advancement, or acknowledged in writing by the child or other descendant.” In Simpson v. Simpson, 114 Ill;. 603, it was objected, this statute did not apply to the case then being considered, for the reason the advancements were made in 1855, which was long before the passing of the act; but it was distinctly ruled, this statute in relation to advancements applies to advancements made prior to its enactment, in case of subsequent distributions. It was then-said: “No rights of the son’s-children, he being then living, were affected by the passage of the act, with its application to advancements theretofore made. Such children had then, in their father’s lifetime, no rights to be affected.” This whole matter of descent of property is within legislative control. Heirs apparent and prospective distributees, during the ancestor’s lifetime, have no vested rights in his estate, nor in the laws of descent. Accordingly, it is held the application of a statute changing the rules of descent of property impairs no vested rights. This statute is not in terms made prospective in its operation. It seems to have been intended to apply to all advancements, no matter when made, 'for it is said, no gift or grant “shall be deemed to have been made in advancement” unless expressed, charged or acknowledged in writing. It was entirely competent for the legislature to so provide. The application of the statute to advancements heretofore made, impairs no vested rights of complainants. Recognizing, as must be done, the controlling authority of the doctrine of Simpson v. Simpson, supra, it is conclusive as to analogous questions in the case being considered. ' The gifts or grants alleged to have been made to the ancestors of defendants were never expressed or charged by the intestate as- advancements, nor acknowledged by the donees as such, and the statute is imperative no such gift or grant shall be deemed an advancement unless so expressed, charged or acknowledged in writing.

The decree of the circuit court will be reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

Decree reversed.