Barton v. Rice

39 Mass. 508

• Court: Massachusetts Supreme Judicial Court
• Decided: October 7, 1839
• Status: Published

Opinion

Wilde

J.delivered the opinion of the Court. The defendants object to a charge allowed by the auditor against Levi Rice, one of the defendants, it being the amount of a note given by him to Levi Rice, his father, the intestate. It is contended, that he is not responsible for this note, but that it ought to be considered as an advancement to the son. There was however no evidence, that it was so intended ; and the note itself is clearly evidence of a debt. Oral testimony is clearly inadmissible to prove an advancement; which must be proved in the manner prescribed in the Revised Stat. c. 61, § 9. That provides, “ that all gifts and grants shall be deemed to have been made in advancement, if they are expressed in the gift or grant to be so made, or if charged in writing by the intestate as an advancement, or acknowledged in writing as such, by the child or other descendant.” The statute does not expressly declare that an advancement shall not be proved *n an7 other manner, but that undoubtedly is the meaning of the statute. Ashley, Appellant, 4 Pick. 24.

This case is not analogous to that of Paine v, Parsons, 14 Pick. 318. The question in that case was, whether the evidence stated was sufficient to prove the ademption pro tanto of a legacy.

Exception overruled.