Hatch v. Straight

3 Conn. 31

Opinion

Hosmer, Ch. J.

The declaration made by Henry Straight, posterior to the delivery of the deed, cannot be admitted to vary its legal operation. It has been determined, that parol evidence of a father’s declaration will not be allowed to bar a child of her orphanage share. Fawkner v. Watts, Atk. 407. And it is extremely obvious, that his declaration diminishing the shares of his other children, cannot possess a higher effect.

The Statute of Connecticut relative to advanced portions,

Footnotes

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(a) is almost a literal transcript of 22 and 23 Car. 2. c. 10. usually denominated the statute of distributions. This law, as well as ourown, is founded on equality, the most just rule of equity. “ The design of the act, (said Sir Joseph Jekyl, Master of the Rolls) was to do what a just and good parent ought, for all his children.” 2 P. Wms. 440. “ Of the undisposed property it makes (as Lord Raymond observed,) such a will for the intestate, as a father, free from the partiality of affections, would himself make.” 2 P. Wms. 443. The law has been considered as embracing not only voluntary settlements, but settlements made on marriage, which alone is a consideration, and the issue of which are purchasers. Edwards v. Freeman, 2 P. Wms. 435. This is quite a liberal construction of the statute, to effectuate its equitable object. A deed, in consideration of love and affection, is, most justly* presumed to be an advancement. The presumption, however, in this, as in other cases, may be rebutted by proof. In the case before us, if the deed to Henry A. Straight is merely a deed of gift, the estate transferred by it, within the fair construction of the statute, must be considered as advanced portion.

This brings me to the principal question in the case, which is, whether any thing appears to rebut the presumption of advancement. The deed to Henry A. Straight is expressed to be “ in consideration of love and affection, and of five dol lars.” it wjDuld be ascribing too much importance to this nominal consideration, to consider it as repelling the proof of advanced portion. The principle of equity, on this construction, would be almost as much violated, as if the consideration had been purely voluntary. Had the sum received by the grantor been a cent merely, it would be serious trifling to contend, that the nature and effect of the provision was changed by it. Between this sum and five dollars, the four hundredth part in value of the property conveyed, there is no material difference.

The opinion I have expressed renders it unnecessary to determine, whether the evidence to shew that the consideration was paid, was legally admitted.

Peters, Brainajid and Bristol, Js. were of the same opinion. Chapman, J. gave no opinion, having been of counsel in the cause.

New trial not to be granted.

Tit. 70. c. 1. s. 12.