Clark v. Willson

Weisel, J.,

delivered the opinion of this Court.

These causes involve the same questions, and the proof introduced into the one, with other admitted facts, was hy agreement, made a part of the other and to the same extent and effect. John W. "Willson, the husband of Mary Willson, hy a second marriage, and the father of the remaining parties, executed in his lifetime and before his marriage with the said Mary, a deed of trust of certain leasehold and fee simple property, for the benefit, after his death, of his children hy his first marriage ; the appellants, in both of these appeals, who were the parties, petitioners and complainants in the respective proceedings below ; the one in the Orphans’ Court for Baltimore City touching the leasehold ; the other in the Circuit Court of Baltimore City, being a hill for a partition or sale in equity of the real estate in fee, of which said John W. Willson died seized,"and intestate. The only questions decided below, and now under review, were, whether the properties conveyed hy the deed of trust on the 23d of April, 1844, to David Stuart, were given as an advancement to the cestuis que trust, (the petitioners and complainants below,) and if so, and brought into hotchpot, at what time their valuation should he made, at the date of the conveyance, or at the death of the grantor and intestate, in 1864, when the parties entitled were put in actual possession and enjoyment? The decree of the Orphans’ Court, as to the leasehold, and that of the Circuit Court of Baltimore City as to the realty, are the same. They declare the respective properties as advancements, and direct that the one should he reckoned in the surplus of the personal estate at its value, at the time of the death of the intestate ; and that the real estate or the value thereof, at the time of the death aforesaid, should be brought into hotchpot with the *700 estate descended, if the complainants elect to come into partition with the infant defendants ; otherwise to be excluded from the distribution of the proceeds of sale of the estate descended. We think there was no error in either of these decrees, and that both should be affirmed.

An advancement is a giving by anticipation the whole or a part of what it is supposed a child will be entitled to, on the death of the parent making it and dying intestate. 17 Mass., 358 . It is to be distinguished from a debt due, or from an absolute or independent gift or conveyance, having no view whatever to a portion or settlement. And, therefore, where a gift from parent to child is unexplained at the time, or a conveyance is silent as to its design, it is the province of the law to declare its proper effect. In some States, as in Massachusetts, it must be proved to have been intended as an advancement, or it Avill be deemed an absolute gift. Butin England, and in various States in this Union, and in this State, the presumption of la\v is, that it is an advancement, liable to be repelled or rebutted by evidence proper for the purpose. In such cases the law leans in favor of the equitable rule of equality, which distinguishes all Statutes of Distribution-. “In the absence of such evidence,” (remarks our lately deceased brother Cochran, in his opinion in Parks vs. Parks et al., 19 Md., 331 ,) “and of anything in the deed to indicate the intended character of the property conveyed, the laAV looking to the equal relationship and right of other distributees, will presume the character most favorable to equal distribution, to have been intended by the donor.” See also, Stewart and Wife et al., vs. Pattison’s Exc’r et al., 8 Gill, 55 ; Mut. Ins. Co., in Baltimore County, vs. Deale, 18 Md., 45 ; Cecil vs. Cecil et al., 19 Md., 81 , and 20 Md., 156 ; Wilk’s Adm’r vs. Greer et al., 14 Alab., 437. It is not necessary to constitute an advancement, that the provision should take place in the parent’s, lifetime. A portion secured to the child in futuro, or to com *701 menee after the father’s death, or upon a contingency that has happened, or to arise within a reasonable time, is an advancement. Edwards vs. Freeman, 2 P. Wms., 442 ; 2 Williamson Extrs., 1289 ; Toller on the Law of Extrs., 377 ; Wilk’s Adms. vs. Greer et al., 14 Ala., 442 ; Hook vs. Hook, 13 B. Mon., 527 , 528.

The deed of trust in the record, of the 23d of April, 1844, which gave rise to this controversy, is for the nominal consideration of five dollars. The subject matter conveyed in trust, are several parcels of fee simple and leasehold properties, to be held in trust for ' the grantor John W, Willson, during his natural life, without impeachment of waste, and after his death, in trust for the use and benefit of his seven children therein named, (all then infants,) who were to receive the clear rents and profits equally, until the youngest of said children should attain the age of twenty-one years; then the portions of the males to be conveyed and assigned to them in fee ; and those of the females to be held in trust for their respective lives, and upon their deaths respectively, in trust, for such persons as would by the laws of Maryland, existing at the execution of the deed, be the heirs of the daughters respectively, to take an estate in fee simple in lands by descent from them, and for the heirs and legal representatives of such person or persons forever ; with a provision, in the event of any of the grantees dying without issue, before the arrival of the youngest at full age, then in trust for the survivors ; and in the event of any dying before that time, leaving' issue, the child or children of such to take his share, &c. Nothing in this deed indicates the purpose of the grantor- to be other than that of making an advancement to the children named in it as cestuis que trust. Its character and provisions all support the legal presumption, rather than suggest a different intent. But this, as has been said and the authorities already cited show, can bo repelled by evi *702 dence properly admissible ; for the introduction of proof for this purpose does not contravene tbe general rule of evidence, excluding parol proof to explain or vary the terms of a written contract. The object being collaterally to affect the title to other property, evidence can be gone into to show its true character and design ; otherwise the law of advancement under our statute would, in most cases, prove a dead letter, as observed by Dorsey,' Justice, in Stewart vs. The State, 2 H. & G., 120 . This was not controverted in the argument, but the proof introduced in this case to remove the legal presumption, and also to support it, consisting of the declarations of John W. Willson, the grantor, was excepted to, on the ground that the declarations were not made at the time of the execution of the deed. And it was urged that the rule on this subject, as given in the cases of Parks vs. Parks et al., 19 Md., 331 , and Cecil vs. Cecil et al., 20 Md., 156 , is that the intention may be ascertained by parol evidence of the donor’s or grantor’s declarations at the time of the gift or of executing the conveyance, or of the donee’s or grantee’s admissions afterwards, or by proof of facts and circumstances from which the intention may be inferred. We think that according to this rule, even liberally applied, the exceptions on both sides were well taken, and that the testimony furnished by the declarations in proof, wks of too vague and uncertain a character to change the legal intendment of the conveyance. But if they could be regarded as admissible, their tendency would be to strengthen the conclusion that an advancement was intended ; and there is nothing in the other facts and circumstances that can authorize us to adopt a different view. Regarding it, then, as an advancement, the next question tojbe determined is, at what time is the valuation of the property brought into the account to be made ? And upon this point we consider it clear, both upon authority and reason, and upon the *703 express language of our statutes of Distribution (Codo of Pub. Genl. Laws, Art. 47, sec. 31, and Art. 93, sec. 126,) that the value of the property should be estimated at the time it was received — that is, at the time when the cestuis que trust were placed in possession or enjoyment of it— and this was after the death of John W. Willson, the grantor. The clause, “or the value thereof at the time such advancement was received,” found in the 31st sec. of Art. 47 of the Code of Public General Laws, seems to have been introduced into our law of Descents of 1820, ch. 198.J sec. 5, for the purpose of removing any doubt or difficulty on this particular subject: as that clause is not in the corresponding provision of the old law of 1786, (ch. 45, sec. 5.) The language of our Testamentary law, regulating the distribution of personal estate, (Code of Public General Laws, Art. 93, sec. 126,) is a literal transcript from the Act of 1798, ch. 101, sub. ch. 11, sec. 6, and is not so specific as that in the law of Descents ; but it is susceptible of the same construction, and the rule of equality should prevail, in assigning to it the same meaning and application. Otherwise there would be different modes of estimating the value of real and personal property given by way of advancement, which should not be the case, unless the language of the statutes, or the adjudications upon them, distinctly so directed. The Alabama statute provides that the value of property advanced should be fixed “ at'the time it was delivered;” and the Supreme Court of that State considered that language clear and unambiguous, and admitted of no other construction than that the heirs advanced, should be chargeable with the value of the property at the time they come to the actual possession of it. This decision was given in a case in which children had been advanced by a deed for slaves, in which the father reserved the use of them during his life. Wilk’s Adm’r vs. Greer et al., 14 Ala., 443 . A similar but much *704 stronger case arose in Kentucky. In that the father executed, a deed of gift to his children of his land and slaves, reserving to himself a life estate in the property conveyed. After his death a question arose between the children advanced, and grandchildren, the children of a deceased son, not provided for. After determining that the property conveyed was an advancement, the Court-of Appeals proceeded to the other inquiry, as to the period of valuation. The Kentucky statute provided that “all advancements should be estimated at their value when made.” And the Court, in answer to the query, “at what time shall an advancement secured by deed, but to be enjoyed at a future period, be deemed to have been made or given?” expressed the opinion, and so decided (sustaining the views of the Court from which the appeal had been taken) that it should be at the time the advancement is made complete by the actual possession and enjoyment of it; adding, in the course of well sustained reasoning upon the subject, “ that when an advancement is received by some of the children at the death of their father, the value of the property at the time they receive it is that which, in justice and equity, they should be chargeable with, in making a distribution of the estate.” Hook vs. Hook, 13 B. Mon., 528 , 529.

The cases relied upon by the appellants as settling a contrary doctrine, and confining the valuation to the date of the deed, we think do not conflict with the construction we have given to the sections of the Maryland Code, regulating the distribution of advancements. The case of Oyster vs. Oyster, 1 Serg. & R. 422, was one in which the property was delivered at the time of the deed, and applying the rather general and indefinite language (as to time) of the Pennsylvania statute, as construed in practice through a long course of years, in relation to personal property, the Court subjected real estate to the same rule of construction, but that was that the child *705 advanced accounts for the advance, according to its value when he received it. The case of Toomer vs. Toomer, 1 Murphey’s (N. C.) Rep., 93, is the same as to the fact of the property conveyed, having passed into the possession of the grantee with the deed, and the valuation at the time of the conveyance, was adjudged tobe the rule in the case ; but it was the time when the property was actually received. So in the Maryland case of Wairfield vs. Warfield et al., 5 Har. & J., 459 , which arose under the law of 1786, ch. 45, and was decided by the Chancellor before the Act of 1820 was passed, the real estate brought into hotchpot, passed into the possession of the grantee at the time of the execution of the conveyance, and this Court, as then constituted, determined that the grantee’s claim of bringing it into hotchpot at the value of the advancement at the time he received it, was correct, and that ho should account for it at that valuation. This case was regarded by the Supreme Court of Alabama, in the case of Wilk’s Adm’r vs. Greer et al., already referred to, as sustaining the position taken in it. And we see nothing in. it to induce a different conclusion from the one we have arrived at and expressed. The decrees appealed from will, therefore, both be affirmed, with costs to the appellees, and the causes remanded.

(Decided 12th November, 1867.)

Decrees affirmed and causes remanded.