Chase v. Ewing

By the Court, Johnson, J.

“ Advancement ” and “ advancements ” are the terms used in the law dictionaries, and in our statutes, to designate money or property given by a father to his children, as a portion of his estate, and to be taken into account in the final partition or distribution thereof. “Advances” is not the appropriate term for money or property thus furnished. The latter phrase, in legal parlance, has a different and far broader signification. It may characterise a loan or a gift, or money advanced, to be repaid conditionally. “ Lent and advanced ” was the language of the old common count, in assumpsit, for money loaned or advanced, to be repaid.

Taking the. whole of the third clause of the will into consideration, it would seem pretty clear that the testator did not intend to speak of advancements made to his children, but of advances for which he held “ receipts or other evidences of indebtedness,” which might be found among his papers at his decease. If the claims, thus spoken of, had been advancements, there could have been no evidences of debt existing in reference to them, for an advancement, creates no debt to the person making it, and in all its features, and in its very nature, is distinguishable from a debt or an indebtedness. Again, these “ advances ” are given as bequests, by the very terms of the will: “ I hereby give and devise to my said children the advance made to each.” This clearly implies that the thing given was something not before given or disposed of, which belonged to him, and which, if not so given, would go to his executor. And to make this more clear, he says: “ My intention being by this, that such receipt,- or other evidence of indebtedness, shall not be collected or enforced against them, or either of them, who may have signed the same, but that the same be given up,” &c.

Here it is, in express terms, that “evidences of in debt-, edness,” for “ advances,” are not to be enforced, but are to be given up to that one of the children who may have signed the same. In short, the entire tenor' and scope of the third clause shows clearly that the testator had in view not gifts and advancements, previously made as such, hut advances only in the nature of loans, and for which he held vouchers, whereby the claims could be enforced. It is claimed, by the plaintiff’s counsel, that the mortgage in question was neither a receipt for a loan or advance of money* nor an evidence of indebtedness. But that it was, and is, an evidence of indebtedness, seems too clear for argument. It purports, on its face, to be given “in consideration of the sum of twenty-one hundred and sixty-six dollars, to them duly paid." And, in the condition, it is recited, that " this grant is intended as a security for the payment of $2166, payable in one year from the date hereof, with interest, which payments, if duly made, will render this conveyance Void.” It was, of itself, evidence upon the trial, not only of the indebtedness, but* also* of the default in payment. It was, therefore, the identical thing described in the clause of the will in question—an evidence of indebtedness for “ advances.” It is assumed, on the part of the plaintiff that it was, and had been, the intention of the testator to advance all his children equally, but nothing of that kind appears in any part of the will. It is only by going entirely outside the will, that any thing is made to appear indicating such an intention in the mind of the testator at any time. The will is plain, upon its face, that the testator designed and intended to give to each child all advances he had made, by which an indebtedness had been created, and for which evidences of such indebtedness might be found among his papers. If there is any ambiguity about it, such ambiguity is created by the extraneous evidence which was introduced before the referee. It follows that the mortgage in question cannot be enforced. There was no evidence or suggestion, before the referee, that the avails of the mortgage were needed to pay debts.

The plaintiff was allowed to give, in evidence, the declarations of the testator, for the purpose of proving that the indebtedness secured by the mortgage was a loan, and not an advancement, to' the defendants, or one of them. To this evidence the defendants objected in due time, and excepted to- the ruling admitting it. This ruling was clearly erroneous. The conversations and declarations of the testator, in favor of the executor, in actions between him and third persons, are never allowable, unless under some peculiar circumstances, forming an exception .to the general rule. The evidence here offered was not within any exception. It was upon the main issue in the case, and clearly was incompetent evidence for the plaintiff. For this error, alone, the judgment should be reversed.

[Monroe General Term, September 7, 1868.

E. D. Smith, Johnson and J. C. Smith, Justices.]

Whether upon this issue, as to whether the money was in fact furnished the defendants, by way of advancement or otherwise, the defendants are entitled to use the admissions and declarations of the testator, in their behalf, against the plaintiff, should, perhaps, be considered here, in view of the new trial before the same or another referee. The question does not, necessarily, arise on this appeal, although it was raised on the trial, by the plaintiff.

It seems clear that, had the action been brought by the testator in his lifetime, his parol admissions, or declarations, that the money had been furnished by way of advancement, and not as a loan, would have been inadmissible, on the ground that they would contradict the plain terms and legal intendment of the mortgage. If such admissions could not have been used as evidence against the testator, had he brought the action in his lifetime, it is difficult to see how they can be properly used in this action, for the same reason. It follows, from these views, that the judgment must be reversed, and a new trial ordered, with costs to abide the event.