State ex rel. Wilson v. Jameson , 3 G. & J. 442 ( 1831 )

Earle, J.,

delivered the opinion of: the court. ''

The court’s opinion, excepted to. in this appeal j manifestly relates to a state of pleadings, and issue joined ¿between the., parties, that do not appear in the record. The counsel in the cause admit the defect, and to save the expense and delay of a suggested diminution, have agreed, that we shall review the opinion below, as expressed in the bill of exceptions, upon the point, whether or not the deeds and evidence constitute an advancement in law, so as to preclude a recovery by the plaintiffs, of a distributive share of the estate of Walter Jameson, the father, without bringing the same into hotch-pot. It is understood too, that the generality of the prayer submitted by the defendants, is not to be noticed by us, in revising, and deciding on the opinion of the County Court. The case is an action instituted on the administration bond of Luke F. Jameson, administrator of Walter Jameson, father of the plaintiff, by Sarah Q. Wilson, to recover a distributive share of his personal estate, in nine parts to be divided, which from the inventory offered in evidence, appears in amount to be $3524 89. The defendant read in evidence the deed from Waller Jameson to John E. Ford, dated the 22d October, 1810, and the deed from John E. Ford to Raphael Jameson, bearing date the 31st October, 1810; and the plaintiffs having admitted they did not bring into hotch-pot the property received by them under the deed from John E. Ford to Raphael Jame-son, the court instructed the jury, that under the evidence, the plaintiffs were not entitled to recover.

These being all the facts laid before the court and jury, we presume their honors thought, that the daughter had been advanced, by her father in his life-time, and that she, and her husband, could not sustain their suit, without bringing the advanced property into the reckoning, with the shares of her brothers and sisters.

Upon the question of advancement, we entirely agree with the County Court, The deeds offered in evidence are conveyances in trust, by the father, for the benefit of his daughter Sarah and others, and afford ample proofs, that she was advanced by the intestate in his life-lime. We consider them as one instrument, and conveying estates in trust; they are wholly unlike the bill of sale in the case of Stewart vs. The State use of Riggen and wife. That appeared to be an absolute transfer, for a valuable consideration of the property mentioned in it; and on a case stated, which was viewed as a special verdict, the court very properly refused to make inferences, to give a character to the deed different from what it purported to be on the face of it. But there is no need to go out of these deeds, or to have recourse to extraneous matter, to arrive at their true intention. No valuable consideration moves from the daughter Sarah, and so far as respects her, the conveyances are obviously voluntary and gratuitous. No account is given in the record, of the wife of Walter Jameson, but it would seem from the admissions of the plaintiffs, that her title to the negroes had ceased by her death or marriage. If she had at the trial been living and unmarried, we should nevertheless have been of opinion, that the plaintiff, Sarah, had been advauced by the settlement, or portion secured to her by the deeds. Her interest in the negroes in remainder, is a vestéd interest, and susceptible of valuation; and in the case of Edwards and Freeman, 2 Pier. Wms. 442, the Master of the Rolls says, that a reversion settled on a child, as it may be valued, is an advancement; and that a portion secured to a child, though in futuro, is a provision according to its value. In the remaining branch of the court’s opinion, upon reflection, we cannot concur. To sustain the suit, thére is no legal obligation on the plaintiffs, that we can perceive, to bring their advancement into hotch-pot. In the Orphans Court, the administrator may not have given them an opportunity to bring it into reckoning, and on a trial at law, we do not see well how they could do so. On the other hand, the defendant’s evidence, that the plaintiff’s wife was advanced by her father in his life-time, only goes to establish that fact, and is not of itself, sufficient to entitle him to a verdict. It is not every child that is advanced, the law excludes from the distribution. It is only such as are advanced by a portion equal, or superior, to á share. To make then a full and perfect defence, it appears to us to have been incumbent on the defendant, to have gone a step further, and showed by testimony the value of the portion; and to have satisfied the jury, in the words of the act of 1798, cft. 101, sub-ck. 11, sec. 6, that it was equal or superior, to a child’s share in the intestate’s estate. This would have excluded the plaintiffs from participating in the father’s personal property, and nothing short of this, it seems to us, could have defeated their action. Our judgment on this subject, is formed on the case before us, and is to be understood, to apply only to a trial in an action at law. In what way we should have viewed the same point, had this been a proceeding in a Court of Equity, for a distributive share, we are at present not prepared to say. It might have required a strict examination of the British authorities, and a close comparison of our act of assembly, with the statute of distributions,—the statute of 22 and 23 of Chas. 2, eft. 10, which in this case, we have not made.

We however decidedly think, that where more than one child has been advanced, the remedy at law by a suit on the administration bond, is by no means an adequate one. The settlement on the plaintiff in the action can alone be inquired into, and if taken into the distribution, he might be seriously prejudiced, having to divide with another, the amount of whose advancement ought to exclude him from sharing in the surplus. In such cases more perfect relief might be had in a Court of Chancery, where all the parties in interest may be brought before the court, and their respective rights adjusted, agreeably to the rules of equity, among the most just of which, is equality.

JUDGMENT REVERSED AND PROCEDENDO AWARDED.