Greene, C. J.,
delivered the opinion of the Court. This is a bill for
the
partition of a certain tract of land belonging to the late Jeremiah Smith, deceased. It charges, among other things, that the defendants, the three sons of the deceased, viz. Stephen, Amasa and Russell, had all been advanced their full share of their father’s estate by conveyances severally made to them by their father. The defendants have filled separate answers and all admit advancements were made to them respectively, but deny that the amount thereof was equal to the share of the sons in the estate of their father, and Stephen offers to bring the estate, which has been advanced to him, into hotchpot.
The course of proceedings in cases of advancement, is provided in the
1
Ith section of the act directing the descent of Intestate Estates and the settlement thereof.
This section not only gives no authority for any one of the parties, who have been advanced, to bring such advancement into common stock, but by implication excludes it. The amount of the advancement must be ascertained by the Court of Probate, before any decree of partition can be passed, and this provision is obligatory on this Court as the Court of Probate. By the English statute of distributions, 22 & 23 of Charles II, c. 10, the division by hotchpot prevails only by virtue of the express reservation of the customs of York and London.
As a common law proceeding, it was only known in England in partition between sisters, co-parceners, one of whom had received gifts of estates in frank-marriage. In such case, if land descends from the same ancestor to her
and her sisters in fee simple, she shall have no share of them, unless she will agree to divide the lands so given in frank-marriage with the rest of the lands descending. (2 Black. 189. Lit. sec. 266 to 273.) And gifts in frank-marriage having fallen into disuse, this mode of partition would have become obsolete in England, had it not been revived by the statute of distributions. (2 Black. 190.) It has been adopted-by statute in some of the States of this Union, as in Kentucky, Virginia and Missouri. (4 Kent. 419.)
We are therefore of opinion that Stephen Smith has no right to bring his advancement into hotchpot. The amount advanced to him must be ascertained and deducted from his share, in conformity to the provisions of the statute, in the same manner as the amount advanced to the other children.
And in ascertaining this amount, we think the true rule is the value of the advancement at the time it was made. We think this rale the most just as
between the
parties and most convenient in practice. It has been adopted in many of the States under statutory provisions similar to our own. In
Oyster & others
v.
Oyster
&
other,
(1 Serg. and Rawle, 422,) it was adopted upon full consideration, by the Supreme Court of Pennsylvania. In
Osgood
v.
Breed's heirs,
(17 Mass. 356,) it was held that interest was not chargeable on monies advanced to a child by the parent. See also
King
v.
Worsley,
(2 Hayward, 366.)
Warfield
v.
Warfield,
(5 Har. & Johns. 459.)
Burton
v.
Dickinson,
(3 Yeger, 112.)
Hall, et ux
v.
Davis, et al., (3
Pick. 450.)
Henderson
v.
Henderson,
(3 Rand. 117.)
This rule is founded upon the just idea, that an advancement is a giving by anticipation the whole or a part
of what it is supposed a child will be entiled to, on the death of the parent or party making the advancements.
In Coke Litt. sec. 273, it is said, when partition of land is to be made between coparceners, one of whom has been advanced by a gift in frank-marriage, she must bring the land given in frank-marriage into hotchpot, and it is to be valued according to its worth at the time of the partition. But this authority is inapplicable to a partition under our statute, in which hotch-pot is unknown.
The bill makes no reference to advancements to the complainants, but the answers do.
The answer of Stephen, alleges an advancement to
Polly Page to
the amount of $304 96, and his belief, that the other daughters, Abby Law and Sophia Eastman, were each advanced to an equal amount.
The answer of Amasa states his belief, that the advancements as above stated, was made to
Polly
Page, and advancements of like amount, made to Abby Law and Sphia Eastman. The ansvrer of Russell, contains no statement in relation to the advancements to the daughters.
We are not at liberty to consider these answers as evidence in the particulars adverted to, they not being responsive to the bill.
The only proof, therefore, of the advancements to Abby Law and Sophia Eastman, exclusive of the answers, is the parole declarations of the intestate, as proved by two witnesses, Peter Cutter and George Turner.
Peter Cutter
swears
he
has frequently heard
the
intestate tell about letting his girls have things, when they were going to be married, to the amount of $500.
George Turner
swears to statements of about the same import.
The 13th section of the statute declares the kind of evidence which shall be sufficient to prove an advancement of personal property.
We do not think the statute was intended to exclude other and higher proof than is therein designated, but inferior proof we think it was intended to exclude.
In our judgment, proof of parol declarations of the intestate, without any charge or memorandum or other proof of delivery, is insufficient of itself to prove an advancement.
They might, if sufficiently proved, be very proper evidence, in the absence of any statute provision, and many of the States, we believe, are without any such provisions.
The proof of the advancement to Polly Page, stands upon a different footing. There was a delivery of the articles and a memorandum made at the time, but the difficulty is, it purports to be of articles lent to the daughter. If the intestate had stated in writing, that the goods were never intended to be taken from his daughter, the case would come directly within the principle of the decision in
Bulkley v. Noble,
(2 Pick. 337.)
We have no doubt such an understanding may be' proved parol, as well as in writing. And then the question is upon the sufficiency of the parol evidence in this case to prove such understanding.
In the first place, we have the fact that the goods have never been called for by the intestate or his representatives, but have been used by the daughter and her family as her own, although they were delivered in March, 1818. So that, in fact, it has jiroved a gift, and it is not unreasonable to suppose the goods would not have been left in this way in possession and use of the daughter, unless such had been the understanding of the parties.
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Greene, C. J.,
delivered the opinion of the Court. This is a bill for
the
partition of a certain tract of land belonging to the late Jeremiah Smith, deceased. It charges, among other things, that the defendants, the three sons of the deceased, viz. Stephen, Amasa and Russell, had all been advanced their full share of their father’s estate by conveyances severally made to them by their father. The defendants have filled separate answers and all admit advancements were made to them respectively, but deny that the amount thereof was equal to the share of the sons in the estate of their father, and Stephen offers to bring the estate, which has been advanced to him, into hotchpot.
The course of proceedings in cases of advancement, is provided in the
1
Ith section of the act directing the descent of Intestate Estates and the settlement thereof.
This section not only gives no authority for any one of the parties, who have been advanced, to bring such advancement into common stock, but by implication excludes it. The amount of the advancement must be ascertained by the Court of Probate, before any decree of partition can be passed, and this provision is obligatory on this Court as the Court of Probate. By the English statute of distributions, 22 & 23 of Charles II, c. 10, the division by hotchpot prevails only by virtue of the express reservation of the customs of York and London.
As a common law proceeding, it was only known in England in partition between sisters, co-parceners, one of whom had received gifts of estates in frank-marriage. In such case, if land descends from the same ancestor to her
and her sisters in fee simple, she shall have no share of them, unless she will agree to divide the lands so given in frank-marriage with the rest of the lands descending. (2 Black. 189. Lit. sec. 266 to 273.) And gifts in frank-marriage having fallen into disuse, this mode of partition would have become obsolete in England, had it not been revived by the statute of distributions. (2 Black. 190.) It has been adopted-by statute in some of the States of this Union, as in Kentucky, Virginia and Missouri. (4 Kent. 419.)
We are therefore of opinion that Stephen Smith has no right to bring his advancement into hotchpot. The amount advanced to him must be ascertained and deducted from his share, in conformity to the provisions of the statute, in the same manner as the amount advanced to the other children.
And in ascertaining this amount, we think the true rule is the value of the advancement at the time it was made. We think this rale the most just as
between the
parties and most convenient in practice. It has been adopted in many of the States under statutory provisions similar to our own. In
Oyster & others
v.
Oyster
&
other,
(1 Serg. and Rawle, 422,) it was adopted upon full consideration, by the Supreme Court of Pennsylvania. In
Osgood
v.
Breed's heirs,
(17 Mass. 356,) it was held that interest was not chargeable on monies advanced to a child by the parent. See also
King
v.
Worsley,
(2 Hayward, 366.)
Warfield
v.
Warfield,
(5 Har. & Johns. 459.)
Burton
v.
Dickinson,
(3 Yeger, 112.)
Hall, et ux
v.
Davis, et al., (3
Pick. 450.)
Henderson
v.
Henderson,
(3 Rand. 117.)
This rule is founded upon the just idea, that an advancement is a giving by anticipation the whole or a part
of what it is supposed a child will be entiled to, on the death of the parent or party making the advancements.
In Coke Litt. sec. 273, it is said, when partition of land is to be made between coparceners, one of whom has been advanced by a gift in frank-marriage, she must bring the land given in frank-marriage into hotchpot, and it is to be valued according to its worth at the time of the partition. But this authority is inapplicable to a partition under our statute, in which hotch-pot is unknown.
The bill makes no reference to advancements to the complainants, but the answers do.
The answer of Stephen, alleges an advancement to
Polly Page to
the amount of $304 96, and his belief, that the other daughters, Abby Law and Sophia Eastman, were each advanced to an equal amount.
The answer of Amasa states his belief, that the advancements as above stated, was made to
Polly
Page, and advancements of like amount, made to Abby Law and Sphia Eastman. The ansvrer of Russell, contains no statement in relation to the advancements to the daughters.
We are not at liberty to consider these answers as evidence in the particulars adverted to, they not being responsive to the bill.
The only proof, therefore, of the advancements to Abby Law and Sophia Eastman, exclusive of the answers, is the parole declarations of the intestate, as proved by two witnesses, Peter Cutter and George Turner.
Peter Cutter
swears
he
has frequently heard
the
intestate tell about letting his girls have things, when they were going to be married, to the amount of $500.
George Turner
swears to statements of about the same import.
The 13th section of the statute declares the kind of evidence which shall be sufficient to prove an advancement of personal property.
We do not think the statute was intended to exclude other and higher proof than is therein designated, but inferior proof we think it was intended to exclude.
In our judgment, proof of parol declarations of the intestate, without any charge or memorandum or other proof of delivery, is insufficient of itself to prove an advancement.
They might, if sufficiently proved, be very proper evidence, in the absence of any statute provision, and many of the States, we believe, are without any such provisions.
The proof of the advancement to Polly Page, stands upon a different footing. There was a delivery of the articles and a memorandum made at the time, but the difficulty is, it purports to be of articles lent to the daughter. If the intestate had stated in writing, that the goods were never intended to be taken from his daughter, the case would come directly within the principle of the decision in
Bulkley v. Noble,
(2 Pick. 337.)
We have no doubt such an understanding may be' proved parol, as well as in writing. And then the question is upon the sufficiency of the parol evidence in this case to prove such understanding.
In the first place, we have the fact that the goods have never been called for by the intestate or his representatives, but have been used by the daughter and her family as her own, although they were delivered in March, 1818. So that, in fact, it has jiroved a gift, and it is not unreasonable to suppose the goods would not have been left in this way in possession and use of the daughter, unless such had been the understanding of the parties.
In .connexion with this fact, we have the declarations of the intestate, that he had fitted his girls out, when they were going to be married, to the amount of $500, and calculated to let that go against what he let the boys have. These delarations, although, as we have said, they are insufficient alone to prove an advancement, yet are very proper evidence taken in connexion with the other facts of the cause. The declarations of an intestate would be admissible to prove a sale was intended and not a gift. His declarations are admissible in favor of the advancements but not against them.
Then we have the statements of Polly Page herself, that her father had advanced her, but she did not think he had done as much for her, as for the other girls, although what he did might have cost as much.
There is also a very natural motive for putting the memorandum in this form, which was to secure the property from liability to attachment by the husband’s creditors.
On the whole, we are satisfied that the goods delivered to Polly Page were intended by the intestate as an advancement. We shall therefore order a reference to a master to ascertain the amount advanced to the sons and to Polly Page, estimating the value thereof at the time the advancements were respectively made.
There is a claim, set forth in the bill, under the ante-nuptial agreement of the 15th April, 1831.
This agreement is objected to by the defendants as invalid, as a jointure under our statute, and because jit was cancelled by the subsequent marriage of the parties.
First. We think this agreement is valid in equity and ought to be enforced, whatever may be its effect at law. In equity any provision however precarious, which a woman agrees to receive in lieu of dower, is binding and
will bar her dower. (15 Mass. 108. 2 Paige, 511.)
Andrews
v. Andrews, (8 Conn. 79.)
Williams v. Chitty,
(3 Vesey, Jr., 545.) Roper on husband and wife, 32 Law Library, p. 291.
The present provision is a reasonable and proper one under the circumstances. The statute of Rhode island in relation to a jointure at law has no bearing on the present question.
Second. The agreement in our view of it contemplates a support out of
the estate
in kind
not in money.
Third. The instrument executed by Betsey Smith, under date December 5th 1848, is in equity not a release of her claim for maintenance, but a transfer of the same to Polly Page, Sophia Eastman and Abby Law, of her right to the maintenance.
But the parties who took the transfer are not entitled to what they may have paid for it, but to what her reasonable support in the manner before stated would have cost the defendants for their share during her life.