The opinion of the Court was delivered by
Kennedy, J.
— The Court below decided correctly in admitting the evidence mentioned in the first bill of exception, showing that Joseph Rittenhouse, the son of Martin Rittenhouse, and father- of the plaintiff’s intestate, was indebted to Martin Rittenhouse, the grandfather of the same. This suit, it must be observed, is brought by the administrator of the grandson, to recover from the grandfather’s estate a part, to wit, one-third, of that portion of the grandfather’s personal estate, to which Joseph, the father of the plaintiff’s intestate, would have been entitled, had he survived his father, Martin Rittenhouse, the grandfather of the plaintiff’s intestate. Joseph Rittenhouse, the intestate of the plaintiff, being one of three children of Joseph, the son of Martin, could only claim, at most, one-third of what his father [137] wo.uld have been entitled to-receive from his father’s personal estate, in case he had outlived him; his .two sisters being entitled to the other two-thirds. But according to our intestate law, the grandchildren are only entitled to such proportion of the grandfather’s personal estate, as their father would have had a right to, had he survived the grandfather. The grandchildren derive their right through their father, and therefore, whatever would ' have, reduced or have barred his. recovery, will in like manner reduce or bar the recovery of his children. For instance, if the father of the grandchildren stood indebted to 'his fathei’’s estate, he could not seek to recover his full portion of his father’s, estate, without' first paying the debt owing by him to it. If he did not, then the debt owing by him, if only equal in amount to part of what might be coming to him from the estate, might be defalcated, or if equal to the whole of his portion, his recovery might be barred entirely by a set-off. The grandchildren, in this respect, stand in the same situation as their immediate parent; and consequently their claim is obnoxious to be reduced by a defalcation, or barred by a set-off of their parent’s debt, in the same.manner, as if the parent had survived and brought the actipn. ■ This principle was settled by this Court in the case of Earnest v. Earnest, (5 Rawle, 213.) The evidence ■ stated in the first bill of exception was therefore properly admitted, though the effect of it may be rendered unavailing by the statute of limitations.
■ The second error,' which- is an exception also to evidence, does not seem to be well founded in fact; because it does not appear that the declarations .of Martin Rittenhouse, the grandfather, made after the death of Joseph, his son, were either offered by the defendant below, or admitted by the Court for the- purpose of proving the indebtedness of Joseph to him. _ If they had, whether Joseph were dead or living at the time,- they would not have been admissible, unless made in the presence and hearing of Joseph his son. A father can no more make his child a debtor to him, simply by declaring it to be so, than he can a stranger: nor will his declarations of the fact of indebtedness be evidence in the one case, more than the other.
The third error is an exception to the .admission, in évidence, of the declarations of the grandfather, made long after the death of Joseph his son, tending to prove that Joseph had been advanced by him, ;to an amount greatly exceeding his portion of his father’s estate. - Such verbal declarations, without other evidence, showing the fact of Joseph’s having actually received money or other thing of value, and what it was that he had gotten, would be no evidence of advancement : to admit it would be attended with dangerous consequences, and tend.to work great injustice oftentimes, among children, in the distribution of their parents’ estate. It would seem to militate against both the statutes of frauds and of wills; because, in effect, it Vrould be putting it in. the power of the parent, to deprive some of his children from all participation in his estate,-by mere word of [138] mouth, when by the'statute of frauds, he cannot part with his real estate in his lifetime; unless by writing, signed by him; nor by will can he dispose of either personal of .real, except it be made in writing. But if verbal declarations of the parent, that he has advanced any one or more of his children to'the full value of his estate, were to be received as competent evidence of the fact, without other evidence showing what the advancement consisted of, together with the real value of it, it is perfectly evident that it would go to take every part of the estate from the children so declared to be advanced, and to give the whole of it to the others, without even the least foundation in equity for it. When evidence has been given, tending to prove that a child had received money to any amount, or other thing of certain value, from his or her parent, the declarations. of the parent generally may be evidence to show quo animo the money or other thing was advanced. Or in case of a subsisting debt, owing by the child to the parent, and proved to be so by competent evidence, not by the declarations of the parent, however, unless made in the presence and hearing of the child, the declarations of the parent may be given in evidence on the part of the child, to show that the parent had released the debt- by declaring that it should be considered as an. advancement. This was decided in Wentz v. Dehaven, (1 Serg. & Rawle, 212.) And upon this ground alone, do we consider what is said there in regard tó a release being good without a -consideration, as being in anywise tenable. Because a release by parol must have, a consideration to support and render it available, otherwise it must be regarded as a nullity, and no more binding than-a promise by parol, without consideration, would be. The relationship between parent and child being such, as in some degree tó make it the duty of the former to assist the latter, and to advance him in the-world, according to the ability of the parent and exigencies of the child, supplies the requisite consideration for the support of the release in such case, when assented to by the child, which may be either express or implied, by his not paying the debt afterwards. But then the debt must be a subsisting debt at the time of the parent’s declaration, of his resolution or intention' to make it an advancement. That is, the debt must be such as the parent has a legal right to demand and sue for, either then or at some future day, when it shall become payable.: and not a debt that has been extinguished by payment; or that has been released, unless for the purpose of converting it into an advancement; or that is barred by the statute of limitations; for a debt barred by the statute of limitations is regarded as one presumed by law to have been paid, unless the debtor himself shall declare otherwise. Then in the present case, as evidence in writing, under the-hand of Joseph, the son, had been given by the defendant, showing that Joseph was indebted to his father, Martin Rittenhouse, the declarations of the latter, if intended by him to have reference to the indebtedness, so provéd of [139] his soil, and the indebtedness actually continued at the time to exist,"would have been sufficient in law to have released the debt, and to have converted itinto an advancement; but whether in making the declarations proved,' the father had a reference to the debts proved to be owing to him at one time by Joseph, was a fact to be referred to the decision of the jury. These declarations of Martin, the father, however, could have no operation or effect-whatever on the balances appearing to be due to hip. from Joseph, according to thp, accounts between them, as stated and signed by Joseph; because the last statement appears to have been made as early as 1794; so that the debt apparently due upon the face of it, was barred by the statute of limitations seven times over and more, before the declarations of the father were made, stating that Joseph “ had got a double portion, and that he need not expect to get any more from him.” Ttbey w'ere made, according to. the testimony of the witness, about two years before the death of the father, which event took place in 1828. So in-regard to any money that may have been received by Joseph on Peter Care’s note, the statute of limitations had greatly more than run there also; hence the father’s declarations, as to this, whether he intended to refer to it or not, were wholly inoperative. Then the only claim or debt, which, from the evidence, Martin, the father, could have had against Joseph his son, at the time, that could be said to be in force, or have an existence, was the ■ money which he paid as his surety, to John Johnson. This money, from the evidence, it would seem, was paid in' 1812; but whether .-before or after the death of Joseph, does not appear. If paid before Joseph’s death, then it was barred also by the statute oflimitations, because the statute commenced running from the day it was paid, if paid in the lifetime of Joseph; and having commenced running, his subsequent death would not stop it. But, if Joseph was dead, at or before the time his father paid this money, and no letters of administration were ever taken out upon his estate, then the debt remained in force at the time of the declaration made by the father; because, there never having been any person such as an executor or administrator, in being, of whom this money, which had become a-debt against the estate of Joseph, could be demanded, or who could be sued for it, the statute of limitations never could be said to have commenced running, and consequently could form no bar. It is only where the creditor may, and has a right to sue, that the statute commences running; but, as soon as that moment shall have arrived, it commences, and nothing can interrupt or prevent its running afterwards. See Stanford’s Case, (5 Co. 123,) cited also in Saffyn v. Adams, (Cro. Jac. 60-1,) which see also. Cary v. Stephenson, (Salk. 42; S. C. nom. Curry v. Stephenson, Carthw. 335; Skin. 555.) Hickman v. Walker, (Willes Rep. 29.) The East India Company, v. Murray’s Admr. (5 B. & A. 204.) Geiger v. Brown, (4 M'Cord, 423.) The Richmond theatre, it is said was [140] burned down in 1812, when it is conjectured Joseph, the son, lost his life: but whether that event happened before or after the payment of the money to Johnson, does not appear. The time of Joseph’s death, as also that of the payment of the money to Johnson by Nicholas, on behalf of the father, are facts to be submitted to the jury, to be decided by them, according to the evidence which shall be adduced and given on the next trial.
The defendants’ counsel endeavoured to make it a question, whether a party can take advantage of the statute of limitations, excepting where he has it in his power to plead it; and seemed to intimate that the affirmative of this question might be true; and if so, the plaintiff here could not avail himself of the statute; because it was not practicable for him to have it introduced into the pleadings in any shape or form. This however is altogether untenable; because it is every day’s practice in some parts of the state, where the plaintiff in prosecuting his action for the recovery of a debt, owing to him by the defendant, is met, without any plea of set-off being put in, but under the plea of payment, as he may be, by the express provision of our defalcation act, with a claim from the defendant of a simple contract debt, owing to him at one time by the plaintiff, of more than six years’ standing before the commencement of the action, to interpose the statute of limitations against it by his verbal allegation made before the Court and jury without putting any thing on the record in regard to it. In England a defendant, to avail himself of a set-off against the plaintiff’s demand, must plead it, so that if it be barred by the statute of limitations there, the plaintiff may very properly set up the statute by way of replication to defeat it: and this may be the legitimate course for the plaintiff to adopt and pursue in such case. But here by the express terms of our defalcation act, the defendant may give a set-off in evidence under the plea of payment, which plea does not admit of such replication, without a seeming impertinence or irrelevancy. Some of the Courts however, if not all in the state, have established a rule, that when the defendant intends to give such evidence under the plea of payment, he shall give the plaintiff previous notice of it, in order to prevent surprise.
There is nothing in the fourth error: nor has it indeed been insisted on. The declaration of Nicholas Rittenhouse, made at the time he paid the money, stating that it was the father’s money, which he was paying the debt with for the father, being part of the res gestee was clearly admissible as evidence of the fact: and being introduced, to show that the money was in fact paid by the father, when the receipt taken for the payment of it, by Nicholas, stated it as received of the latter, without any mention of the father at all, rendered it quite important as well as pertinent.
The fifth error which is the last, is an exception to the charge of the Court delivered to the jury, in answer to a point submitted by [141] the plaintiff’s counsel, requesting the Court to charge the jury, 41 That the law in this case does not presume that it was an advancement and -not a debt.” In reply to this, the Court instructed the jury, “ That it was presumed by law, in the absence of any proof one way or the- other,, that money given by the father to the son, where no security is taken for it, is an advancement. The taking of a security by the father of the son would repel the presumption.” This instruction of the Court, does - not appear to be correct, taken in the sense in which we are inclined to think the jury must have understood it. It is impossible, almost, to avoid the conclusion, 'that the jury were led to believe by it, that whenever a father paid money for a son as his surety, or lent him money without taking a bond, bill, note or such like security for the repayment of it, it was regarded in law as an advancement. But this cannot be so, for if a son ask his father to lend him a sum of money, and the father does so, without spying more, • or any thing about the repayment of it, or ■of taking a security of any kind for its repayment, it becomes a debt upon’.loan, and not an advancement; and the law in such case, it being a debt, implies a promise to repay immediately.' So if a father becomes surety for his son in a bond, and pays it, without saying any thing about it, the son thereby becomes his debtor; and the law raises a promise on the part of the son, to pay the father immediately. If a father, however, without being solicited by the son, gives him a sum of money, without saying on what account or wherefore he does so, or pays a debt for him, it will be considered a gift or advancement to the son. But if a father advances money to a ■ son upon the request of the latter to lend it to him, or pays money for the son, either at his request or as his surety in a bond given by the son and him, the son becomes as much a debtor to thé father in such cases, as if he were a stranger, because the form and ' nature of the transaction, in each of those cases, negatives the idea of a gift, and yet no security is given by the son for the repayment of the money, nor any thing expressly said about it. There is also an objection to the charge of the Gourt on this point, in another view of it. The counsel did not request the Court to charge the jury on the point as upon a mere abstract question of law, but in reference tq the case there as it appeared in evidence to the jury. The evidence showed most clearly, without even the least semblance of contradiction,, that the moneys which passed between the father and son, were considered by them, as creating debits and credits; and that all moneys advanced or paid by the father for the son were to be accounted for and repaid by the son to the father.
The account between them, being stated and kept in the form it' was, left no ground for a presumption that the moneys charged in it against the son, were an advancement and not a debt: and what seemed to render it most conclusively so, is the charge of interest made therein against the son, upon the moneys received by him of, [142] or advanced for him by his father, which is wholly incompatible with the notion of its being considered by the parties at the time as an advancement. For aught that appears to the contrary, the father had the right to, and might have sued the son, for the balances in his favour upon the accounts as stated, and would have been entitled to a judgment therefor against him. So, for the money paid by the father, as surety of the son to Johnson, if the son were then living, the father might have maintained a suit against him immediately for it; because it was clearly a debt, as has-been shown above: so that the Court below, in reference to this case, as it appeared in evidence, ought, in order to have met fully the request of the counsel for the plaintiff, to have told the jury, that the evidence showed without contradiction, that all the moneys advanced or paid by the father, Martin Rittenhouse, to or for his son Joseph, were either moneys lent or money paid at the special request of the son, which the father from the evidence, might have compelled the son to have repaid, if he were able; and were therefore to be considered as debts owing by the son to the father; and could not be presumed or considered to have been an advancement at the times respectively of their being given to or paid for him. The judgment must be reversed and a venire de novo awarded.
Judgment reversed and a venire de novo awarded.