Batton v. Allen

A father had recovered a judgment against one of his sons, and caused aa execution to be issued thereon and put into the hands of the sheriff. After the son’s death, the father signed a writing at the foot of the execution, in these words : “ X hereby discharge .1. W. Caldwell, sheriff, &c. from all liability whatever of the above stated execution, the defendant being dead, and no further proceeding required on the same.” The father afterwards died intestate, and there was a balance of his personal estate for distribution, of about 14,000 dollars, exclusive of the amount of the said judgment. The deceased son left three children; and six children of the intestato fa. ther survived him. Held, that the said writing given to the sheriff did not discharge the debt, so as to entitle the children of the deceased son to an equal seventh of the said balance; but that the amount of the debt should have been added to the said balance, and one seventh of the whole sum decreed to each of the six surviving children; and that the amount of the debt should constitute so much of the seventh to be distributed to and among the children of the deceased son. A note given by a son to a father, is not, of itself, evidence of an advance, ment by the father. Proof of mere parol declarations of a father, that die had fully advanced a child, is not sufficient to establish an advancement.

Michael Allen, late of the county of Gloucester, died intestate, in May, 1840, leaving six children living, and three grandchildren, the children of his son James, who died before him. Henry Allen, his eldest son, administered; and at the October-term, 1842, of the orphans’ court of Gloucester, made a final settlement, by which a surplus of 14,870 dollars and 73 eents was found in his hands for distribution. At the December term, 1842, application was made to that court-to decree and settle the distribution of the surplus. The three grandchildren claimed a full seventh, in right of their deceased father. This was resisted by the surviving children, on the ground that James, the deceased son, had, as they claimed, been advanced by the intestate in his life time. A judgment in favor of Michael Allen, against his son James, for 700 dollars debt and 5 dollars costs, was entered in the common pleas of .Gloucester, on a bond and warrant of attorney, on the 15th of June, 1835. Execution was issued on this judgment, and put into the hands of the sheriff of Gloucester, in the life .time ,of James. After .the death o.f James, Michael Allen signed a writing at the foot of the execution, in these words :—“ I hereby discharge J. W. Caldwell, sheriff, &c. from all liability whatever of the above stated exe.cution, the defendant being dead, and no further proceeding required on .the same.” Certain notes given by James to 'his father, .of dates prior t<j the bond and .warrant, .and against-which the statute of limitation 'had .run, were exhibited.' The orphans’ court, after hearing testimony, decreed tha,t distribution of the said surplus be made in equal seventh parts-; one seventh to each of the six surviving children, and the remaining seventh to be divided equally among the children of the deceased son James. Neither the amount of .the said judg.ment, nor of the said notes, was included in the said surplus. From this decree an appeal was taken ,by the surviving children to this court. The respondents, in their answer to the petition of appeal, say, first, that no appeal lies from the said decree to this court.; second, that the decree .is .right, and ought to be affirmed. The testimony on the part of the surviving children is as follows-:— Abigail Stout. She heard the intestate say he had advanced ■money for his son James. She does not know that she ever ;heard him say how much. Heard .hip? say he dj.d not desire ¿9 make a will. She kept house for him better than nine years. Slie heard him say, he had let James have money before she came to live with him. She knew James to get of his father, after she went to live with him, 110 dollars in pork and 40 dollars in cash. She recollects intestate’s telling her he ‘had advanced to James as much as he thought proper at that, time. He told her, one day, that the law made a will good enough for him. Being cross-examined, she said, James died about six years before the time of her examination as a witness. Michael Allen died in 1840. James was not present at any of the conversations she had with Michael. Michael charged the 110 dollars for the pork to James, in a hook or a note; she thinks a note. She is pretty certain he took a note. All she knows about James’s getting the pork, is what Michael told her. She never saw the note or book account. She heard Michael say, James got the 40 dollars. She did not see it, counted, but she was in the house. Mary Moore testified, that she heard Michael say, he had given James all ho e,xpected to give him ; that, he had set him up twice ; that he had not done as well as he could wish. On cross-examination, she said this conversation took place about eleven years before. Jesse C. Chew. Michael Allen has said to me, that lie had advanced liberally to James. Being cross-examined, he says, he thinks Michael told him he set out Henry Allen, another son, with some money and a horse, when he left his house. Enoch Allen, another son, was about thirty years old when lie died. He had been away from his father’s several years before he died; his mind was impaired, and his father boarded him out. Witness understood the old gentleman that he paid for the hoard of Enoch. Witness knew three of the daughters; they lived with their father several years after they were grown. Witness understood they received an outfit when they loft their father’s house, but does not know what it was. Louisa Batton. She lived in the house of Michael Allen about two years before he died. She heard Michael say he had let James have a good deal of money, and as much as he intended to let him have, till he saw whether there waá any more coming to him or not. He said he thought he had let him have as much as he would be able to let the other children have; as much as would be coming to the other children. Being cross-examined, she says she is 17 years of age. She is hired at Mr. Sberwin’s, who married one of the daughters of Michael Allen. The conversation took place at Michael Allen’s, about three-years ago-last summer. There-was-no person present. Sire was in the kitchen at the time. He has told me that, several times. She understood he was 80 or 81 j^ears old when he died. He spoke to her frequently about his other business. She was hired at Michael Allen’s. Bowman Sailer. Michael Allen stated to witness that his property at Barnesborough stood 'him in about 5000 dollars; that he'had advanced money to James, and had got no rent for the time James lived there. Henry wished his father, Michael, to take ■•the note which he, Henry, held against James, and keep it out of the share of his estate that would be coming to James after Michael’s decease. Michael held some writings against Henry, for about the same -amount that Henry held against James; and Michael said he went down to Salem and signed Henry’s writings away, and made him very angry •, and that he got a sharp letter from Henry about it. The testimony on the pait of the grandchildren is as follows :— Abigail Stout, the first witness called for the surviving children, being called on the part of the grandchildren, testified as follows. She remembers when James went to Natchez. When he left Barnesborough, she heard Michael say James had assigned him notes; but she cannot tell the amount. Michael appeared to be satisfied while James lived at Barnesborough. Michael said these notes were assigned to him by James to collect and pay him as far as they would go; he did not say all; he did not say they would pay all. He did not say whether he was satisfied or not; he did not express any dissatisfaction. This was, perhaps, three weeks before James left for Natchez. Michael and James were together several times shortly before James went to Natchez, about their business. Michael showed her some notes; he did not show her all. Michael told her, James had assigned him notes that would satisfy him for what he had let James have, in part; he did not say all. Cross-examined, she says, she never heard Michael say he had given James all he expected he would get; or that James would get no more unless the other heirs agreed to give him more. She has heard him say, he did not wish to give James any more, till he knew what was coming to him- of his share of his estate. Lydia Allen, sworn on the part of the grandchildren, says, she is the widow of James. Michael and James were frequently together before James went south, talking about their business. She heard Michael say, that James owed him money, and he wished him to pay it. She knows James assigned hit» notes, at different times-. These notes were assigned shortly before James went south. She saw Michael sign a paper ait Svvedesborough.