Parker v. McCluer

By the Court.

Davies, Ch. J.

[After stating the facts, and reciting the statute above.] — There was no acknowledge ment in writing of the value of the real estate advanced to Samuel, and it was therefore proper to estimate the worth at the time the property was given. This time was the date of the deed or release from Samuel to his father in 1828, when forty-five acres were given to him, and a survey thereof made, and possession of the same given by Joseph to Samuel.

Samuel continued in possession thereof up to the time of his death, and it was subsequently sold for the payment of his. debts.

Upon the. facts found by the court, Joseph and his heirs: would undoubtedly be estopped from setting up any claim to the forty-five acres; and if any such claim had been preferred, a,court of equity would have restrained its enforcement.

It does not appear, from the finding of facts, that Joseph acquired any other real estate, prior to his death, than that which he owned at. the time of the transaction with his son Samuel, on July 19, 1828. ¡Neither does it appear that he died possessed of any personal estate. We are authorized to assume, to sustain this judgment, that he acquired no other real estate, after July 19, 1828, and that he did not die possessed of any personal estate. If the plaintiff’s right of recovery was dependent upon establishing either of these facts, she should have done so upon the trial.

It having been found as a fact that the forty-five acres given by Joseph to his son Samuel in July, 1828, were worth more than one-eighth part of all the land or real estate of Joseph, we agree with the supreme court that the transaction between Joseph and Samuel amounted in law to an advancement from the former to the latter. Samuel, or his children, upon the death of Joseph, intestate, were entitled to take one-eighth part of his estate, real and personal. It not appearing that he left any personal estate, or any real estate other than what he possessed on July 19, 1828, it appears from the facts found that Samuel was advanced more than one-eighth part of the estate which Joseph owned.

Such advancement being equal, if not superior to the amount of the share which Samuel would be entitled to receive of the estate of Joseph, it follows from the provisions of the revised statutes above quoted, that Samuel and his children, including this plaintiff, must be excluded from any further share in the estate of Joseph McCluer. This clearly should be so, until it is made to appear that he died possessed of any real or personal estate other than that owned by him on July 19, 1828.

This action is to recover one-sixty-fourth part of the real estate which this plaintiff’s ancestor quit-claimed and released to the ancestor of the defendant, on consideration of receiving the forty-five- acres, which were worth more than one-eighth part of all' the real estate of the defendant’s ancestor. If Joseph, then, had died intestate beforé such advancement or gift to Samuel, such one-eighth piart would have been all that Samuel would have inherited. He has received his equal share and retained the same, and his heirs now claim the one-eighth part of the residue. A more inequitable claim could hardly be preferred, and I concur with the supreme court that it .cannot be maintained.

Judgment should be affirmed, with costs.

All the judges concurred.

Judgment affirmed, with costs.