Hartwell v. Rice , 67 Mass. 587 ( 1854 )

Thomas, J.

This is an appeal from the decree of the judge of probate for this county, ordering a distribution among the heirs at lav of Luther Stone, deceased, intestate. The questions of lav/; which have been argued, arise upon exceptions to the rulings of the judge by whom the cause was heard on appeal.

The first exception, and that chiefly pressed in the argument, was to the allowance of two receipts as advancements against the appellants, heirs at law of Luther Stone; the appellants con tending as matter of law, first, that the receipts or acknowledgments in writing were insufficient, and secondly, that they had been- subsequently merged or extinguished in a' last will and testament of the deceased.

The other exception was to the refusal of the presiding judge to admit evidence offered to prove advancements alleged to have been made to others of the heirs at law.

The questions involve the construction of the Rev. Sts. c. 61, §§ 6, 9, 11. These embody, in substance, the St. of 1805, c. 90, § 3. Section 9 is as follows: “All gifts and grants shall be deemed to have been made in advancement, if they are expressed in the gift or grant to be so made, or if charged in writing by the intestate as an advancement, or acknowledged in writing as such by the child or other descendant.” It is under the third mode, the acknowledgment in writing by the child or other descendant, that the questions as to both of the receipts arise.

In relation to the receipt signed by John and Permelia Stone, we have had no doubt. The money was paid to the daughter. The acknowledgment in writing is signed by her and her husband. The form of the receipt is immaterial, the meaning and purpose being plainly expressed. The receipt is a clear acknowledgment by both husband and wife, that the five hundred dollars were received as a part of her portion of her father’s estate.

The question as to the allowance of the receipt of Isaac N. Hartwell is not without difficulty. It is clearly just that it should be allowed. The money was advanced and used for the support of the daughter. The intent of the father to treat the amount paid as an advancement, and the consent of the husband so to receive it, appear clearly by the receipt itself. The money is in express terms acknowledged to have been received for the support of the daughter at the hospital, “ as a part of her portion out of her father’s estate.” The daughter was insane and incapable of making the acknowledgment in writing, and the only question is, whether that of the husband was, under the facts of the case, sufficient.

There would seem to be no good reason for holding that the receipt or acknowledgment must be signed by the child personally, or that it could not be signed by an agent or attorney having authority for the purpose. In the present case, the daughter was incapable of mating such appointment, on two grounds, coverture and insanity. But such authority may result from the relation of the parties, as well as from express appointment. The personal property of the wife, which comes into the possession of the wife during coverture, becomes absolutely the husband’s. A gift of money or chattels made by the father to the daughter, by way of advancement or otherwise, becomes at once the property of the husband. His receipt would discharge a debt or cancel a note or mortgage due to her. A legacy given to her may be recovered by him. So may her distributive share of the estate. And his receipt would be a sufficient discharge to the executor or administrator for the payment of either. These are familiar principles, and are to be resorted to in the construction of the"' provision of the statute. Reading the statute in the light they afford us, we think this receipt within the fair scope of its provisions and sufficient evidence of the advancement.

We think the practical construction of the statute has been, that where the child or other descendant was a married woman, the receipt or acknowledgment should be signed by the husband. In the case of Paine v. Parsons, 14 Pick. 318, the receipt of the husband was held to be sufficient for the ademption of a legacy given to the wife. In Jones v. Richardson, 5 Met. 253, the receipts were given by the husband, and though the case was decided upon another ground, the court say expressly, that had the father died intestate, the receipts would have been good evidence of advancements. It is true that in neither case the precise point of the sufficiency of the husband’s receipt was discussed, but in both it was clearly disclosed by the form of the receipts. The very fact that it was not raised furnishes pretty strong indication of what had been the practical construed 3n of a statute so familiar to the profession.

For the purposes of the present case, however, it is only necessary to determine, that where the wife is incapable of making the acknowledgment in writing, by reason of insanity, and the gift is one of money or personal chattels, and made by the intestate for the support of his daughter, and intended by him as an advancement, the acknowledgment in writing may be made by the husband.

We do not see any evil consequences to flow from such decision, as anticipated by the learned counsel for the appellants. There would seem to be little danger of collusion by a father with his son-in-law to defraud his daughter, and if things came to that pass, the purpose would easily be carried out by charging the advancement, instead of taking a receipt or acknowledgment.

We see nothing, in the situation in which these receipts were found, to indicate that the testator did not intend they should be used as evidence of advancements. Upon the face of the papers the intention is obvious. The receipt of Mr. and Mrs. Stone was found upon his file of notes ; that of Mr. Hartwell, in the bundle of letters written upon the matter, to accomplish which the money was advanced.

Nor were the receipts merged or extinguished in the will, made in January 1852, and cancelled in June of the same year. It would be going very far to say that the will, as made, being only a devise of a parcel of the real estate to two of his grandchildren, and leaving the rest of his estate, real and personal, intestate, would have operated as an extinguishment, if it had taken effect as a will. The ground on which a will is held to operate as an extinguishment is, that the testator must be deemed to have graduated his legacies with reference to prior advancements, (Jones v. Richardson, 5 Met. 253,) a reason not applicable to a will like this. But whether this would have been the result or not, this will never took effect. If the making of the will indicated a purpose to extinguish the receipts, the cancelling of the will as clearly indicated a change of that purpose. In looking at the cases cited by the counsel for the appellants, we find no ground for affirming that a will, using that word for want of a better, that never took effect as such, operated as an extinguishment dr merger of previous advancements.

The exception to the exclusion of the evidence offered of the existence and loss of supposed charges by the intestate against his other children, was not strongly pressed. It was in effect an offer to prove, by the declarations of the intestate in the country, charges which the statute requires to be in writing. There was no offer to show the existence of any charges in a book kept by the intestate, by a witness who had seen them and could testify to their contents. No foundation was laid for the introduction of secondary evidence. It is not easy to see how there could be, when there was no competent evidence that the primary ever existed. The production of a book of the testator, from which leaves appeared to Have been cut, proved nothing. The law could not presume the act was fraudulently done. In the absence of evidence, the presumption is that it was rightfully done, that is by the testator himself. Exceptions overruled.