AUTREY vs. AUTREY'S ADM'R

AUTREY vs. AUTREY’S ADM’R. [FMAI SETTLEMENT AND DISTRIBUTION OR DECEDENT’S ESTATE.] ' J. Advancements. — Money, or property, given hya parent to a child, will bo presumed to have been intended as an advancement, unless such prosumptibit is repelled- by the nature of the gift, or by other evidence showing that it was intendeds as an absolute igift. To show that an . absolute g-ift, ancLnot a moro advancement, wasdntended, the contemporaneous declarations of the parent are admissible evidence for the . child; Taúd whenithe question arises between' distributees, thereds much reason, as well as authority, in support of the proposition,” that the subsequent declarationslof the p>arent, expressive of his intention in p>arting with the property,-, are .admissible evidence for the same purpose. But in this case, conceding the admissibility of such subsequent declarations, and consideringthem in connection with the other facts proved, they are not sufficient to. show that the primary court erred iii deciding,that the property was intended as án advancement. Appeal from' the ¿Register in Chancery...at .Claiborne, sitting as Probate Judge for Monroe comity. IN tbe matter of tbe final settlement and distribution Df the estate of Alexander Autrey, deceased, -on the suggestion of the administrator, .that the decedent.had made advancements in his life-time to Anonymous B. Autrey, his son, which ought, to be brought into hotchpot. '■ On tbe trial of tbe issue., joined on. this suggestion, as the bill of exceptions states^-*,* tbe only evidence adduced was tbe following” t 1. The answer 4f-said Anonymous,SB. 'Autrey,¡-on oath, as required by the act offFebruary ->8, 1858, ‘t to better ■...ascertain advancements;’'" &c., (Session Acts . 1857-58, p. 305,) in the following <. words :. “Affiant says, that Ms father, Alexander Autrey,, gave him the following described property, to-wit: In the year 1828, household furniture, valued by said Alexander Autrey at the time of the gift at $25 ; one negro, Albert, valued at, and worth $.400: in the year 1821, or 1822, one colt, worth $5 ; in the year 1851, one negro man, Dick, valued .by said. Alexander. Autrey at $1,000 ; and in the year 1854, in cash, $1,980. The abbye is the only property affiant ever received from his father, as a gift or advancement. 'There 'was property givten by said Alexander'Autrey to all his children; but affiant cannot positively say, whether • the.'property was so given'as an advancement, to be accounted for on the final settlement of the estate of said-A.le'xahdery or was intended as a gift to said children.” 2. The testimony of 'Pitvihenia B. Autrey: “Alexander Autrey in his life-time gave to Anonymous B. Autrey, his son, one negro boy, Albert ; one negro woman, Oily ; also, one young horse, five or six. head of cattle; four or five sheep, one bed and furniture-; worth, in all, about 11200.. Said property was given about the -year 1-828. He also gave to said Anonymous, ‘in the' yeah 1853, a, likely negro man, named'Dick Hunter,’worth about -SI,000, and $2,000 in gold; and he also gave to saiffiAnonymous, in the year 1855, $2,500, as she - wasInformed by said Alexander abd Anonymous Autrey."” 3. The testimony '-efv-Willis Darby : “ Anonymous -B. Autrey told witness,’iir'1854, that Alexander Autrey let bim have $2,500, giveti iff to him at that time. Anohy-znous tbeu lived in Texas',''aH'witness was informed by him.” 4. The testimony of»!?.. T. Bagget: “ Alexander Autrey •told witness,“in a conversation had at his fireside, that he i had given away some property to his children. The words ' used were these s Now, Mr. Baggett, I don’t intend that that property shall ever come back into my estate again— I gave it -as a present,'to help them along to live.’ Imme-diatoly lifter that, he said that he had made a will, and' showed'it to witness, 'and witness read it. ‘Now, the proper! y in my possession is all That is included in that will, i have named--no property in that will, only the ’ valuation of it} which is $12;000 worth--of negro property for my living csMldrfehf fAjOOO for each of> his- children, if that much was'on hand, in-moDey. ¡Tie then said; there would probably bel thirty-five or fortynegroes left for-his -wife, during -her'life; and at her-'death, he wanted those negroes all divided equally among his heirs, his' grandchildren included. This conversation was in 1853, or 1854. Witness heard said Autrey repeat the same on other occasions-subsequently, and heard him say, that what he had given his-- children was theirs, and not his; that he had given it to- them as a present j --that they had helped him to make it, and [hej wanted to see them enjoy it while he lived; and that if they spent it, he could not help it. Hd often told witness, that he never -wanted- -the property he had given to them to come- back‘-into his estate, or to be divided among his heirs; -this was subsequent to the first conversation spoken-of. Witness-'has' heard him say the same thing, in substance, ten or twelve times, more o less.'’ (Cross-examination.) i “-Said Autrey- never named any prop erty he had given to any .of his children -;' -but he told wit-* n-ess, thaNhe -had -'given more property to -his sons, than to Ms daughters. He never told witness what bis* intentions were when he gave off his property to his children. In the conversations alluded to, witness can’t say that said Autrey used the language, ‘ I never intended,’ or ‘ I don’t intend’; but thinks he said, -‘ I don’t intend.’ 5. The testimony of A.- L. Autrey, a son of Anonymous' B;-Autrey : “About November, 185-5, I went to live withf my- grandfather, Alexander B. Autrey, and remained with him-untilhis-death. Duringthat time, he frequently told me, that he had made-advancements of property to bis different children, but had'always intended "such advancements as absolute gifts, and did not wish or intend that they should' evor-'be brought up on - the final disposition of his estate.I have heard him say, that he had loaned a negro girl to Anonymous Bv Autrey, to keep-until he (said" Aléx.)-' could get a negro boy for him ; -thairsaid negro girl died in the possession of said Anonymous, buf-bfelonged to him (said Alex.) at the time of her death, and he did not hold said Anonymous accountable for her value.” (Cross-examination.) “ I would -further sta-te, that I now recolleet of no person being present when said Autrey and myself bad the conversations mentioned-above ;-but they were repeated frequently while I was with him. He also said,"’that he inade a will at one time, but had destroyed it; and that he did not wish his property to be divided, or taken from those to whom he had given it, if he should die without making another will. I 'believe Oily was the name of the girl which said Autrey said he had given to said Anonymous.I do not know her valtte.” “ Thereupon, the said'Anonymous B. Autrey moved the court, that he be not "charged with any advancements; but the court overruled his motion; andheld that he was chargeable' with' $6",300 as an advancement from his father, which he should bring into hotchpot”•; and'"this ruling and decision of the court,‘to which an exceptio'n was reserved by the said Anonymous, is-now assigned as’ error. Torrey & Leslie, fór appellan't.' The evidence set" out in the record clearly shows., that the court below erred id" charging the appellant- with $6,300 as an advancement: As no objection was made'to any portion of the evidence, its admissibility was thereby conceded, and cannot now bee-questioned. As to the admissibility of the decedent’s subsequent declarations, if the court ■ should" hold that that question can be here considered, the -appellant relies on' the following authorities : Phillips v. Chappell16 Geo: 10 f Sherwood v. Smith, 23 Conn. 516 ; ■ Lawson's appeal} 23 Penn. St. ( 11 Harris,) 85 ; Johnson v. Belden, 20 Conn. 322 ; Wentz o. Dehaven, 1 Serg. & E. 312 ; Sutler v. Mer.. Ins-. Co-., 14 Ala. 777 ; Mitchell v. Mitchell, 8 Ala. 42 Iv-. J. W. Posey, contra. The decree of the court below is fully sustained by the evidence. The subsequent declara tions of the intestate, if admissible for any purpose, arer not sufficient to outweigh'the other facts in proof; and' they are not competent evidence. — Humbly v. Stainton, 24 Ala. 712; Martin- v. 'Hardesty, 27 Ala. 458 ; Gillespie v. Burleson, 2S Ala. 552 ; -May v. May, 28- Ala. 153. [MAJORITY — R. W. WALKER, J.] R. W. WALKER, J. The- rate-is,--that- when either. i money or property is given by a parent to his child, it -&iil i be presumed to be an “ advancement under the statute, unless the nature-©f the -gift repels-su'ch presumption ; as in the case»,of triüáng presents, money expended for education, &c. But thq presumption, that' property given by a , parent to his child was intended-as an ‘ adtancemfent,’ may - be repelled by evidence showing that a gift, and not an advancement, was intended; and for this'purpose; the contemporaneous declarations of the parent are admissible.— Mitchell v. Mitchell, 8 Ala. 414, 421 ; Butler v. Mer. Ins. Co., 14 Ala. 777. And where the question arises between distributees, whether property received by one of them was intended as an advancement,’ or as a pure gift, there r is much reason, as-Y^-ell as authority, in support of the pro position, that the declarations of the intestate, made sub sequent to the delivery, expressive ’of. his intention -in parting with the property; are adniissibleriii favor of the child to whom it was delivered.- Phillips v. Chappell, 16 Geo. 5 16 ; Sherwood v. Smith, 23 Conn. 5 Rep. 516 ; Lawson’s appeal, 23 Penn. St. R. 85 ; Johnson v. Balden, 20 Conn. 322 ; 2 Phill. Ev. (C. & H.’s notes, edit. of 1859,) 705. We need not however, decide this question in the present case ; for, assuming 'the admissibility > of all the evidence : set out in this record, we are hot so well convinced that the register erredtin his conclusion, thatilve are willing to reverse his decree. The appellant filed' his answer to the allegation, as required by the fact of February 8, '58 (Acts ’57-8, p. 305); and ili that he states, that in 1828 he ¡received “ household furniture, valued fey said Alexander Autre}'- at the time of the gift' ¡a-t $25, and one negro, Ali bert, valued at and’- worth $400 and that in 1851 he > received‘ one negro man, Dick, valued by said Alexander Autrey at ¡,$1,000’.” -'The fact that the'-property was given and received at a specified value, seems to indicate that fit was intended as an advancement, and not as a pure gift. . At any rate, it is clear from the appellant’s answer, th'at r the alleged intention of the intestate, that the property «-should be held.-as a. gift, and;not as an advancement, was •; aot communicated to the son, either .when the property ' wa® delivered, or at .any time afterwards. This circum- . stance, we think, raises a strong presumption against the . existence af such an intention. The only evidence to repel ■ this.presumption consists of the subsequent declarations of t the parent^ testified.to by twov.witnesses, one of. whom is •( the son of .the appellant. The’ declarations detailed by the •■witness Baggett, are reconcilable with the idea, that the i intestate intended that.the propefty-.should be considev&d ¡ an advancement; and that all that he .meant to state to • the witnessiwas¡,that the'property which he had'delivered i to his children had not been simply loaned to them, but that he had given them, the absolute title. When we con- . aider the relation of the other witness to the appellent, and ■ the caution with which evidence ofi.declarations, made in • casual conversations, should always bereceived,iwe are not ■. convinced that the register erred in deciding that this testimony was insufficient to- overturnpresumption of an ■ ‘ advancement’ arising out of the other facts in the case. " The record does not show that .the girl Oily constituted- a part of the advancements with which the appellant was ■charged. ‘ On the contrary, the inference from the record is,, •.that the sum with which-he was charged was.i.exclusive>of . her value. Decree, affirmed.