In re the Estate of Pickenbrock , 102 Iowa 81 ( 1897 )

Given, J.

I. The facts are, in substance, as follows: Englebert Pickenbrock and his sons, W. A. and Gus W. Pickenbrock, executed their promissory note to the Polk County Savings Bank for a loAn of four hundred and fifty dollars, Gus W. receiving the money so borrowed. Gus W. Pickenbrock kept the interest paid for one year, and paid fifty dollars on the principal. The note was renewed at ninety days after date by Englebert and W. A. Pickenbrock. G-us W. Pickenbrock, being absent, did not sign the renewal. It was afterwards renewed from time to time, but whether G-us W. joined in the renewals does not appear. The administrator paid four hundred and forty-eight dollars and two cents in satisfaction of the note as an approved claim against the estate. • Englebert Pickenbrock also went on a note with Grus to the Valley Bank for a loan of two hundred dollars, Bus receiving, the money. This note Englebert Pickenbrock paid prior to his death. Also upon a note for two hundred dollars to the Savings Bank of Iowa, and on another note for two hundred dollars to the People’s Bank, Grus receiving the money in each instance. The administrator paid two hundred and twenty-three dollars and forty-seven cents in satisfaction of the note to the Savings Bank. The note to the People’s Bank was secured by collaterals given by Englebert Pickenbrock, out of waich the People’s Bank realized payment of the note. The testimony shows that each of these transactions was for the benefit of Grus W. Pickenbrock, and that Englebert Pickenbrock signed the notes as security only. Gfus testifies: “Father went my security for the note [referring to the $450 note], and he says I should pay the note if I could, and if I didn’t pay it, and he had to take the note up, it should be taken out of my share of the estate.” In speaking of all the notes, he further states: “When these notes were signed, he said that if I didn’t pay the money back, and he had to take the notes up, it was to be taken from my share of the estate.” On cross-examination he says, with respect to the four hundred and fifty dollar note, “The understanding was that the debt was mine, and that I would have to pay it.” In answer to the question, “Bid he loan it to you, then?” he answered: “Yes, sir. I expected to pay it back; and he says, ‘If you don’t pay this, — if I have to pay this, — -it will be taken out of your part of the estate.’ I agreed to pay the note if I could. The agreement was that I was to pay off this note at the bank if I could. * * * The understanding was that he was surety for me.” The only other evidence bearing upon the question of advancement is that of W. A. Pickenbrock, that his father said that all the money that was advanced to any of the children should be taken out of their shares. Also the testimony of Mr. Carroll Wright that deceased har1 said to him that he had advanced to Gus very much more money than was his proper share of the estate, and that this money that he had paid, or was liable for, he wanted taken out of Gus’ share; that it was an advance. The testimony of W. A. Pickenbrock and Mr. Wright is objected to upon the ground that the declarations testified to were not made in the presence and hearing of Gus Pickenbrock. Whether or not the objection is well taken, we need not determine, as the uncontradicted evidence of Grus Pickenbrock shows-beyond doubt that at the time the notes were given it was the intention of the deceased, agreed to by Grus Pickenbrock, that whatever deceased, or his estate, should have to pay on said notes, would stand as an advancement to Grus; hence the result must be the same whether or not that evidence is admitted.

II. We now inquire whether the transactions shown in the evidence constitute an advancement to G. W. Pickenbrock to the extent of the money paid for him by the deceased before his death, or by the administrator since. “An advancement is a gift, by anticipation, from a parent to the child, of the whole or a part of what is supposed such child would inherit on the death of the parent.” McMahill v. McMahill, 69 Iowa, 118 (28 N. W. Rep. 471). “It is nothing more or less than an irrevocable gift made by the parent to the child in anticipation of such child’s future share of the estate.” In re Estate of Lyon, 70 Iowa, 381 (30 N. W. Rep. 644). See, also, High’s Appeal, 21 Pa. St. 287. In 2 Woerner, Adm’n, 1214, it is said that advancements are gifts in prcesenti. “The gift, in order to constitute an advancement, must he irrevocable, divesting entirely all of the ancestor’s interest, and forming no part of the property to be administered.” In Grey’s Heirs v. Grey’s Administrators, 22 Ala. 236, advancement is said “to be a provision made by the 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.” “Whether a gift or conveyance is to be regarded as an advancement or not, is, of course, determined by the intention of the donor at the time the gift is made.” 2 Woerner, Adm’n, 1217. By executing' • these notes the deceased made himself and his estate liable thereon as surety, and there can be no doubt, under the evidence, but that it was his intention that whatever he or his estate might have to pay on account of that liability should stand as an advancement to his.son Glus, and it is equally clear that Grus agreed that he should be so charged. The situation is not different from what it would have been had the father given his son these amounts of money under an agreement that whatever thereof the son failed to pay should be charged as an advancement against his share in the estate. In re Blockley v. Blockley, 29 Ch. Div. 250, a gift by a father to a son to enable the son to pay a debt was held, on the death of the father intestate, to be an advancement under the statute of distributions. The fact was that, the son being in debt, his father gave him a check, to enable him to pay the debt. The court says: “I think that the sum of money given by a father to his. son to pay his debts is or may be an advancement as much as a sum of money given him for other purposes.” Quoting from Boyd v. Boyd, L. R. 4 Eq. 305, Wood, V. C., it is said: “Wherever a sum is paid for a particular purpose, which is thought good and right by the father, and which the son himself desires, if it be money which is drawn out in considerable amount, and not a small sum, it must be treated as an advance. The payment of the money is the important thing. The court does not look to the application. As to the debts, suppose the young man had represented to his father that it was extremely important they should be paid, in order that he might keep his position in the army, and the father had paid those sums in order to assist him, it would have been clearly an advance.” Johnson v. Hoyle, 3 Head, 57, was an action by the creditor of an heir to subject his share in the estate to the payment of the debt, to which defense was made on account of advancements. The proof shows that: “The intestate, then being indorser for his son, Daniel H., in the Branch Bank of Tennessee, at Athens, on a note previously discounted, which, with interest, then amounted to eight hundred and eighteen dollars and thirty-two cents, took up said note, and gave his note and indorsers for the same; and after several renewals and payments in his lifetime the same was paid off by his administrator in February, 1858, out of the assets of the estate. It is stated in the answer that this was regarded by John Hoyle as an advancement to his son, and it is insisted that it shall be so considered. But on this point there is no proof. Tet it is certain that he paid that amount to or for his said son, and took from him no obligation of any kind for it. Nor does it appear that he ever claimed or demanded it from him as a debt. Then, Avhether it shall be considered an advancement or a debt is left to the legal presumption of such a case. We held at Nashville, last term, in the case of Vaden v. Hance, 1 Head, 800, that where a father advances money to a son, or pays debts for him, the law presumes it is an advancement, unless it is shown by proof or circumstances that it was intended to be held as a debt against the son. Such we consider to be the law, and consequently must regard this as an advancement.” See, also, Steele v. Frierson, 85 Tenn. 431 (3 S. W. Rep. 649); Graves v. Spedden, 46 Md. 527. It will be observed that those cases rest upon the presumption of law that the payments were to be advancements, while in this case there was an express agreement between the father and son to that effect. We think, in the light of these definitions and decisions, that the amounts paid by the father during his lifetime were clearly advancements.' A gift, although it must be made .in the donor’s lifetime, may take effect at the donor’s death, or on a contingency within a time, or on a contingency which has happened, and still constitute an advancement, 2 Woerner, Adm’n, 1218; Hook v. Hook, 13 B. Mon. (Ky.) 526. Appellant’s counsel say, in argument, that deceased never returned the note that he paid to Grus, and never notified Grus what he finally intended to do. When the parent takes a note or other security for repayment, it is prima facie a debt, and not an advancement; “but if he takes the notes merely as a memoranda of accounts, and not as evidence of debts, his intention must prevail, and the amounts be charged as advancements.” 2 Woerner, Adm’n, 1219. We think it cannot be said, under the evidence, that Englebert Pickenbrock assumed this liability for Grus, or that he paid the amount that he did as a gratuity, not to be accounted for, nor that, in view of the agreement, the relation of debtor and creditor existed. We fail to discern why any different rule should be applied to the payments made by the administrator, from those made by the deceased. They were all made in pursuance of the agreement and of the expressed intention of Mr. Pickenbrock, Sr., that the amounts thereof should constitute an advancement to Grus. As the amount advanced is in excess of the portion coming to Grus, we need not consider the other question discussed in the case. The judgment of the district court is affirmed.