Sayles and Wife Others v. Baker Others , 5 R.I. 457 ( 1858 )

The question raised by the answers to this bill, is, whether the conveyances to the intestate's sons, Amasa Baker, Abram Baker, Daniel Baker, and Simon Baker, being, with one exception, expressed to be for the consideration of "love and good will," or "love and affection," and one conveyance to Daniel Baker, being for the same consideration, and the further consideration of one dollar, shall be deemed to be for advancements to the sons, in the division of the intestate's estate.

The provision made by statute in reference to advancements, is found in ch. 159, sects. 18 and 20 of the Revised Statutes. Section 18 enacts, "If any child or grandchild of the intestate shall have received from such intestate any real or personal estate for his advancement or settlement, the court of probate shall ascertain the amount thereof before appointing commissioners to divide such real estate, and shall, in their decree of division, direct said commissioners to deduct the amount thereof from the share of such child or grandchild." Section 20 enacts, "If real estate shall be conveyed by deed of gift, or if personal estate shall be delivered to a child or grandchild," with certain formalities therein named, "the same shall be deemed an advancement to such child, to the value of such real or personal estate."

The complainants rely upon the terms of the statute, sect. 20, making a deed of gift to be evidence of an advancement. It is plain, that if these deeds are truly deeds of gift, then the whole question is at once settled; for the statute is imperative, that in such case, the deed of gift shall be deemed to be an advancement. If the conveyances are not in a strict sense deeds of gift, still if the estates conveyed were received from the intestate for advancements or settlements, are they not also in such case to be deemed advancements? The 20th section of the statute declares the kind of evidence which shall be sufficient to prove an advancement; without intending to exclude other and higher evidence than is therein designated. Law v. Smith others, 2 R.I. Rep. 252. It is the apparent intent of the statute in the provision making a deed of gift evidence of an advancement, to substantiate this particular mode of making an advancement of real estate, without intending to exclude all other modes, or all other evidence of advancements. The English statute of distributions, 22d and 23d of Charles II., upon the principles of which our statute is based, was, in respect to advancements, grounded upon the custom of London relative to orphanage. The principle of the statute is founded upon the just idea, that advancements are the giving, by anticipation, the whole or part of what it is supposed a child will be entitled to on the death of the parent or party making the advancement; and it therefore provides an adjustment among he heirs, by way of set-off, in the distribution.

Independent of the statute, it would seem, that a conveyance of land from father to son, for the consideration of love and affection, would be presumed to be an advancement. In Hatch others v. Straight, 3 Conn. R. 31, the supreme court of Connecticut decided, that a deed from a parent to a child, in consideration of love and affection, is presumed to be an advancement; and this, we think, in the absence of such a statute as ours, making a deed of gift evidence of an advancement. It is also decided in the case referred to, "that though this presumption may be repelled, yet where a father gave to his son a deed of land worth $2,000 in consideration of love and affection and $5, the latter consideration, being merely nominal, was not sufficient to repel the presumption; and that the declarations of a grantor, made after the delivery of the deed, explanatory of his intention in executing it, and of his views of its operation, are not admissible to repel the presumption of advancement." Upon principle, we do not see why a deed for the very consideration which is presumed to induce an advancement, should not be presumed to be for an advancement; and if a deed of gift, which in this sense is a deed without valuable consideration, is evidence of an advancement, why should not a deed for the consideration of love and affection, and a mere nominal consideration, furnish ground for the same presumption? We are inclined to think that the words of the statute are not to be limited to deeds expressed to be for love and affection merely, but that the deed of gift, there intended, is a deed without a valuable consideration, as distinguished from a deed for an equivalent consideration.

At the common law, a gift, or donatio, was properly referable to estates tail, and a feoffment, to estates in fee-simple; livery of seisin being essential to both. Under our statutes, either form conveys possession without livery, or other ceremony. The term, "deed of gift," in this statute, must therefore have been used, we think, in a general, rather than a technical sense, as implying a voluntary conveyance, in distinction from a conveyance for a price or valuable consideration.

Upon this view of the statute, the deeds to the intestate's sons, Amasa, Abram, Simon, and Daniel, which are expressed to be given "for love and affection," or "love and good will," are deemed by us to be conclusive evidence that the lands thereby conveyed were designed to be by way of settlement or advancement; and the value of those lands conveyed must be ascertained and deducted from their respective shares, in the division of the intestate's estate. The deed to Daniel Baker; which is expressed to be for the consideration of "love and affection, and one dollar," was, on the authority of Scott v. Scott, 1 Mass. R. 527, allowed to stand open for proof as to the extent of its real consideration. But we find no evidence to satisfy us that there was other consideration than that which is expressed. The vague declarations of the intestate as to his intentions of giving his land to his sons for their services, and of his having given to his daughters their portions of his estate, are not evidence to show valuable considerations for those deeds. To give to those declarations the effect of evidence to such extent, would be, in effect, to make them the will of the intestate, and to do what he has not done, and what, if he had chosen to do, he might have done, and to dispose of his estate amongst his children without reference to the nature and effect of his conveyances to them, ascertained by the law under which they were made.