Gordon v. Barkelew

New Jersey Court of Chancery

Gordon v. Barkelew

6 N.J. Eq. 94

DecidedMarch 15, 1847

StatusPublished

This text of 6 N.J. Eq. 94 (Gordon v. Barkelew) is published on Counsel Stack Legal Research, covering New Jersey Court of Chancery primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gordon v. Barkelew, 6 N.J. Eq. 94 (N.J. Ct. App. 1847).

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Opinion

The Chancellor.

There is nothing in the proofs in the cause to overcome the evidence furnished by the deed from Runyon Barkelew, since deceased, to his son Abraham, since deceased, and the wife of Abraham, that the farm conveyed by that deed was an advancement.

A deed in the form of bargain and sale, from a father, in consideration of $ 1 and of love and affection, to one of his sons, his heirs and assigns forever; to have and to hold to the use and benefit of the said son and his wife, and their heirs and assigns forever, is, unless a different intention can be made to appear, an advancement to the son. 2 Atk. 635.

As to Stephen’s right in the descended estate, his father put him in possession of lands, which he occupied twenty years and then sold; and the father made the deed to the purchaser and Stephen received the consideration money. I think this, also, must be held to have been an advancement to Stephen.

As to Vincent; the father put him in possession of a house and lot, thirty-five years ago, which he has occupied ever since, and on which, with the knowledge of his father, he has made large improvements, at his own expense. Whether this is to be considered an advancement or not may not be material. It will not be material if the value of the house and lot, without the improvements, be not equal to the value of what would bo the share of Vincent in the whole real estate to be divided, including the house and lot; for the court, under the circumstances, would direct the house and lot to be assigned to Vincent, at its value without the improvements. If its value without the improvements be greater than his share as aforesaid, then it will be necessary to determine whether it was an advancement. If it was, then he could not be compelled to pay any thing to the other heirs on account of it. But if it was not, the court would direct the house and lot to be assigned to him on Ms paying the excess of its value over a share, such excess to be so divided among the heirs as to equalize their shares.

[102]*102A partition will be decreed; and to that end, and before directing a commission, to make the partition, the proper reference will be ordered.

Order accordingly.

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The Chancellor.

There is nothing in the proofs in the cause to overcome the evidence furnished by the deed from Runyon Barkelew, since deceased, to his son Abraham, since deceased, and the wife of Abraham, that the farm conveyed by that deed was an advancement.

A deed in the form of bargain and sale, from a father, in consideration of $ 1 and of love and affection, to one of his sons, his heirs and assigns forever; to have and to hold to the use and benefit of the said son and his wife, and their heirs and assigns forever, is, unless a different intention can be made to appear, an advancement to the son. 2 Atk. 635.

As to Stephen’s right in the descended estate, his father put him in possession of lands, which he occupied twenty years and then sold; and the father made the deed to the purchaser and Stephen received the consideration money. I think this, also, must be held to have been an advancement to Stephen.

As to Vincent; the father put him in possession of a house and lot, thirty-five years ago, which he has occupied ever since, and on which, with the knowledge of his father, he has made large improvements, at his own expense. Whether this is to be considered an advancement or not may not be material. It will not be material if the value of the house and lot, without the improvements, be not equal to the value of what would bo the share of Vincent in the whole real estate to be divided, including the house and lot; for the court, under the circumstances, would direct the house and lot to be assigned to Vincent, at its value without the improvements. If its value without the improvements be greater than his share as aforesaid, then it will be necessary to determine whether it was an advancement. If it was, then he could not be compelled to pay any thing to the other heirs on account of it. But if it was not, the court would direct the house and lot to be assigned to him on Ms paying the excess of its value over a share, such excess to be so divided among the heirs as to equalize their shares.

[102]*102A partition will be decreed; and to that end, and before directing a commission, to make the partition, the proper reference will be ordered.

Order accordingly.

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Bluebook (online)

6 N.J. Eq. 94, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gordon-v-barkelew-njch-1847.