Haverstock v. Sarbach , 1 Watts & Serg. 390 ( 1841 )

The opinion of the Court was delivered by

Sergeant J.

The question to be considered in this case is presented by the first bill of exceptions. The suit was brought on several bonds executed by the defendant at different times, to his father-in-law, the three first before the death of the defendant’s wife, and the others afterwards, for the payment of various sums of money, in about one year after their respective dates. The execution of these bonds is not denied, nor is there any allegation that they were paid or in any way satisfied by the defendant: but he alleges, that although they were complete and effectual bonds, sealed and executed in all the forms of law, and therefore importing a legal obligation to pay, yet, in fact, they never were intended to be what they purport; but that the father, alleging himself to be unable to write or keep a book, for that reason took bonds, intending that the money should not be paid, but be held by way of advancement. The evidence offered by the defendant to show this, was not of any thing said to the son-in-law himself, or, in respect to these identical bonds, to any person whatever, but of declarations made by the father to a like effect, to another son-in-law, (Christ) from whom the father took two other bonds, and to whom he said he had given the others, or would give them, in the same way: he would take bonds from all, and then it would be easily settled. Evidence was also received of the father’s declaring to a daughter (Mrs Asper) that he meant to do by his children all alike; that he would give them all money, and take their bonds, but not to be paid, nor interest, and then after his death, they would all be made equal.

The subject of advancement assumes a variety of aspects, and has different operations, according to circumstances. In what instances, and to what extent parol evidence is proper to show an advancement, must depend very much on the manner in which the case is presented. Should it be alleged, after the death of an intestate, that a child had been advanced by money or property, which he denied, and there existed no evidence whatever to prove any transfer of property or money to him from his parent, it would hardly be contended, that the general verbal declarations of the parent, unaccompanied by any act or writing or other evidence, would suffice to cut off the child from his inheritance; and when this point occurred in the case of Levering v. Rittenhouse, (4 Whart. 130) it was held that they would not. But should the father, by writing, clearly charge a child with such an advancement, it would be evidence to prove as well the fact of money or property transferred, as that the transfer was an advancement; as was held by this court in Hengst’s Case, (6 Watts 86). Again, should it appear by evidence aliunde, parol or otherwise, that money or property had passed from a father to his child, accompanied by contemporaneous declarations of the parent that it was an advancement, then, as part of the res gesta, such evidence would be good to explain the nature of the transaction, and, if believed, would fix its character as an advancement, as well in respect to the parent so giving, as the child so receiving, and their representatives. Thus, it has been held, that if the father, by his will, bequeath a legacy to his child, and after the making of his will, adeems it by an advancement of money during his lifetime, parol evidence of his contemporaneous declarations is admissible. Kreider v. Boyer, (10 Watts 54); Rosewell v. Bennet, (3 Atk. 77). So in Wentz v. Dehaven, (1 Serg. & Rawle 312) the father, by writing not sealed, declared his intention to be to forgive a mortgage debt due by his son, and this was held competent evidence for the purpose.

In these cases the fact of the transfer of property, and the nature of the transaction, are fixed by positive evidence which permanently affects all parties. But loose declarations of a parent, that he intended an existing debt should be an advancement, not substantiated by writing, not made to the child nor assented to by him, nor accompanied by any act, are not sufficient to destroy a debt secured by a legal instrument, in full force and obligation as such, and change it into a gift by way of advancement, whether offered by the son to defeat the recovery of the debt, or by the representatives of the father against the son to defeat his claim for a distributive share, as was the case of Levering v. Rittenhouse, (4 Whart. 130). There the declarations of the father that he had changed the debt due to him by the son into an advancement, were offered, not by the son to repel the claim for the debt, but against the son; for the debt being barred by the statute of limitations, the attempt was to set it up as an advancement in order to defeat the son’s action for a distributive share. But such declarations were held inadmissible, as not being of a sufficiently legal and fixed character permanently to bind the parties. If they would not be evidence against the son, they ought not to be evidence for him, when the turn of events alone might happen to make that desirable. For these reasons, in Kreider v. Boyer, (10 Watts 54) where the attempt was to defeat the recovery of a legacy by a father to his daughter, by showing, from the verbal declarations of the father, that the daughter’s husband had been advanced by the father by a payment of money, for which the father had taken the husband’s note a few months before the making of the will, the evidence was decided by this court to be inadmissible, it being held that a debt could not thus be changed into a gift; there must be an actual delivery of the note itself, or something equivalent, to constitute a donatio, whether inter vivos or causa, mortis.

Here the offer was not even to show declarations by the father to the son, concerning the bonds on which this suit is brought, but that in relation to other bonds, the father had stated his meaning in taking them, and that his general object or plan was, to give to his children money and take bonds from them, without designing they should be paid. The effect of allowing such evidence would be, not to rebut an equity, but to overthrow legal instruments by loose, general, and uncertain declarations, and to make something equivalent to a writing or will for the decedent, by words spoken at random. This would necessarily lead into a wide field, and the meaning of the decedent must in that case be collected from all that he had said at any time or place, and to all persons, concerning his affairs, and in the end leave only conjecture to rest on, to be applied at discretion. Rights so important to families as those depending on advancement, require more safe and permanent rules to govern them.

The decision of this bill of exceptions makes it unnecessary to examine the other bill, it being an .offer of rebutting evidence merely.

Judgment reversed, and venire facias de novo awarded.