Fitts v. Morse

103 Mass. 164

Opinion

Colt, J.

The appellant claims that the administrator had no right to charge off the demands against Frye and Edwin Morse as uncollectible, because they should be treated as assets in his hands, to be charged against the distributive shares of Mrs. Frye, the daughter of the intestate, and of the children of his son Edwin, now deceased ; that the amounts in dispute were in fact advancements made by the intestate in his lifetime to his children, and must be treated as such in the settlement of his estate.

There are three modes, under our statute, in which a gift or grant may be shown to have been intended as an advancement; namely, when it is expressed in the gift to be so made, or is charged in writing by the intestate as such, or is acknowledged in writing as such by the child or other descendant to whom it is made. The appellant seeks to establish the advancements claimed in this case, under the last named mode only; and the agreement of March 11, 1861, is offered as an acknowledgment in writing which satisfies the requirements of the Gen. Sts. c. 91, § 8.

* The parties to this instrument are the three children of the intestate, and the daughter’s husband. It is wholly an agreement between themselves. The intestate was not a party to it, nor does it purport to be a receipt or voucher to him. It is an agreement for an equitable division of the estate, in view of the fact that one of them had received more than the others from their father in his lifetime. It does not appear that the intestate ever had knowledge of it, or in any way approved the arrangement. It is not an agreement or arrangement among the heirs, made with the concurrence or approbation of the administrator, as a basis upon which his accounts in the probate court should be rendered, and the estate distributed. It was made during the lifetime of the father, and only looks to future action in the settlement of the estate. There is no statement that the money and property received were received as advancements. At most, it is but a contract that they shall be so treated. Whatever rights this may give the parties among themselves, it is not enough to establish an advancement under the statute.

An advancement must be the intelligent act of the intestate. Whether money or personal property, delivered by him to his children, is to be treated as a loan or sale, or a gift, or an advancement, depends upon his intention, manifested in a legal way. No agreement to which he is not a party can effect such a result. The intent of the giver, not that of the receiver, is to govern. Barton v. Rice, 22 Pick. 508. Hartwell v. Rice, 1 Gray, 587. Bigelow v. Poole, 10 Gray, 104.

In the result to which we come, the declarations of the intestate and Mrs. Frye, which were offered, were immaterial, and need not be considered. They were not offered to show that the testator recognized and approved the agreement as an acknowledgment. Decree affirmed.

“ All gifts and grants shall be deemed to have been made in advancement, if they are expressed in the gift or grant to he 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.”