Miller's Appeal , 31 Pa. 337 ( 1858 )

The opinion of the court was delivered by

Thompson, J.

Equality is equity amongst heirs, and the doctrine of advancement has, for its object, the furtherance of this end. It is defined to be “ a pure and irrevocable gift, by a parent, in his lifetime, to his child, on account of such child’s share of the estate, after .the parent’s deceaseBrightly’s JEq., § 389; Yundt’s Appeal, 1 Harris 575. The time when the advancement is to be considered and settled is, after the death of the ancestor, regardless of when made, and is to be treated as “purely a gift;” so that all considerations, as to time and interest, in the absence of express direction and assent of the heir, is out of the question. It would subvert the very end of the parent’s intention, which the doctrine is supposed to effectuate, if compensation, as a result of law, were required in the shape of interest for advancement. The parent makes it generally as his children come of age or marry, and the disposition so made will not be interfered with, on any surmised contrary intent, to that of a free gift. The Act of Assembly of the 8th April 1833, fully adopts these pre-existing equity principles, on the subject, by declaring that, when a child has been advanced by his parent, either in real or personal estate, to the extent of an equal share, he shall have no further portion in the distribution. But if he shall have received less, then he shall be entitled to such sum as will make him equal with the other heirs.

The auditor in this case followed these principles, and distributed the residuum of the estate, after deducting advancements. This decision being excepted to, the learned president of the Orphans’ Court overruled it, and directed the appellant’s portion to be distributed to the other heirs. This is the ground of exception here.

The learned judge controverted none of the principles suggested, but denied to them their legal operation, under the idea, that the agreement between Valentine Miller and his son Jonathan controlled the distribution. By the agreement, the father sold to his son his farm for $4398.75; of which $1500 were paid down, and bonds given for the residue, under the following stipulation: “ and the remainder to be divided into three equal shares, the one share shall be Jonathan Miller’s, his hereditary portion from his father, Valentine Miller, the other two shares shall be divided into eight equal yearly payments,” &c., to be paid in equal proportions to a son and daughter, his remaining children. The intestate lived with the appellant nearly twenty years thereafter, and after his death, his estate amounted to a few hundred dollars more than the two-thirds value of the farm, at the time of the sale. It was this increase that gave rise to the present controversy.

The agreement very clearly manifests an intention on the part of the intestate, to divide his estate equally among his three children; for, by it, he made them equal to a cent, as regarded his real property, which constituted almost, if not entirely, his whole estate at that time, differing only as to the period of enjoyment; a difference not thought an objectionable inequality in wills, or so regarded in the intestate laws, or by the Act of the 8th April 1833, or by the law regulating advancements, all of which favor equality amongst heirs. Is there any covenant in the agreement to control this intent, thus evinced, and so accordant with law ? We must look to the agreement for this; for it is still in force, and must remain so, until the purchase-money is all paid, as it regulates the distribution between two of the heirs. The court were right in deciding this. But we think they were in error, in the effect given to the agreement. It provided simply for a disposition, amongst the intestate’s children, of his real estate. It was made to operate equally, by a division of the purchase-money amongst them. Jonathan’s share was allowed as a part payment, and he covenanted to. pay his brother and sister equal amounts for their shares, and he was to become the owner of the farm. This distribution was obviously the object of the agreement, but it was regarded by the court below, as also having the effect of a release by Jonathan of all interest in the future, in his father’s estate, let the amount be ever so large. As he was to receive no more in the arrangement than the brother and sister, and still was to continue to maintain and provide for his father, it is difficult to perceive a good reason for such an inequitable construction of a provision so ambiguous; and no reason being obvious, it is a just ground to conclude that nothing of the kind was meant. “ The one share shall be Jonathan Miller’s, his hereditary portion from his father.” These are the words out of which a covenant of release must be extracted, if any such exists. But the words, and substance are both wanting to make it a release, operating on future interests. The equality of distribution, then made, leaves no ground to presume that Jonathan was, on account of superior advancement, to receive no more, for this was not the case. The words were undoubtedly introduced to show that Jonathan shared equally with the brother and sister, as they with him, and also to show how the purchase-money of the farm was to be paid. I entirely agree, that to give an instrument the effect of a release of all future interest in an estate to which one is an heir, it should be clear and unambiguous. The intention should be manifest. Presumptions are all in favour of equal distribution. If Yalentine Miller had died intestate the day after the receipt of the $1500 from Jonathan, as part payment of the land, the pretence would certainly have been considered an ungracious one, that would have attempted the exclusion of Jonathan from an equal share of it. Or if, before his decease, his estate had increased, after the distribution made, to six thousand instead of six hundred dollars, the judicial mind would have hesitated long before determining that the oldest son, and the favourite child, as I think the acts of the father show him to have been, should have no share of it, on account of the terms used in the instrument. The principle is the same, although the amount is greatly less. It was truly enough called an “hereditary portion” — it was so — but these terms possessed neither the force nor the form to cut off all future participation. There was neither a will of the father, nor a contract of the son, to this effect, and Jonathan’s rights stand as do the other heirs, in regard to his father’s estate.

Advancement is a pure gift, on account of the child’s share of the estate of the parent, as already stated; and consequently is not chargeable with interest, unless, perhaps, when expressly given and received upon such terms. That was not thé case here, but the learned judge determined the equity of the case by a consideration much akin to its allowance, for he says, Jonathan had the use of $966, for about twenty years, before his father’s death, while his brother and sister were postponed until after his death. Against this, however, the fact that the father lived all the time with Jonathan, was considered; but this, again, was presumed to have been compensated, in the advantages in the bargain for the farm. These presumptions all contemplate compensation for advancements, and are therefore at war with the principle — it is a pure gift, and not to be interfered with, as such, by considerations not expressly existing at the time when made. This was a case of ordinary advancement, and we can only regard the rights of the parties, in the spirit of the law ordinarily regulating it. For these reasons, the decree of the Orphans’ Court must be reversed.

Decree reversed, and distribution decreed according to the auditor’s report. The appellees to pay the costs in this court.