
    David Osgood, Appellant, versus The Heirs of Ebenezer Breed.
    Interest is not chargeable on moneys advanced to a child by his parent.
    The - said Osgood, being joint administrator with Ebenezer Breed, of the goods and estate of Mary White, deceased, made a petition to the judge of probate for this county, setting forth that the said Mary died intestate, leaving only two heirs at law, viz., Hannah Osgood, late wife of the petitioner, and Ebenezer Breed, father of his co-administrator; that by the death of his said wife, the petitioner, in her right, was by law entitled to a moiety of the personal estate of the said Mary, and the representatives of the said Ebenezer deceased were entitled to the other moiety thereof; that it appeared from sundry memoranda, accounts and documents left by the said Mary, that she had in her lifetime given to her children and especially to the said Ebenezer, deceased, large sums of money, which ought to be considered as advancements, and to be taken into the account of the personal estate of the said Mary, and considered as part of the same, in the distribution [ * 357 ] * thereof; or otherwise charged and accounted for in the final adjustment of the same; and praying that interest may be charged upon the sums of money so advanced to, or received by the said Ebenezer.
    
    The petitioner proceeds to state the sum of 324 dollars, 59 cents, as advanced by the said Mary to her said son Ebenezer, in the year 1763 ; and the sum of 178 dollars, 88 cents, as advanced in the like manner to the said Hannah in the same year; and he claims that the excess of the first sum beyond the second, with interest thereon from the time of the advancement, should be charged to the representatives of the said Ebenezer, in the distribution of the personal estate of the said Mary. He also states other sums as lent, advanced or intrusted by the said Mary to the said Ebenezer, and for which the latter had' never accounted.
    The judge of probate, after hearing the parties interested in the subject matter of the petition, decreed that the two sums before mentioned should be taken and estimated as part of the estate of the said intestate, to be added to the personal assets in the hands of the administrators, in the distribution thereof; and as to the interest thereof, and as to all the other items and sums of money mentioned in the petition, the judge decreed that the same were disallowed, and held and taken wholly for naught.
    The petitioner appealed from this decree, because interest was not charged on the sums allowed as advancements, and because the other claims were disallowed, which, although they might be considered as debts due to the intestate, to avoid circuity of action, might and ought to be considered as charged to the representatives of the said Ebenezer, in the distribution of the personal estate of the intestate.
    
      Steams, for the appellant.
    
      Peabody, for the respondents.
   Parker, C. J.,

pronounced the opinion of the Court.

The decree of the judge of probate is affirmed, for the following reasons:— [ * 358 ] * As to the claim of interest on the balance of the advancements made to the son and daughter of the intestate, it is not supported by any authorities, nor by the principles of the law on the subject of advancements.

All the authorities cited in support of the claim of interest relate only to marriage portions, which are considered as vesting at the marriage, and stand upon a different footing from advancements.

The true notion of an advancement is a giving, by anticipation, the whole or a part of what it is supposed a child will he entitled to on the death of the parent, or party making the advancement. It must, according to our statutes, be proved to have been intended as an advancement, chargeable on the child’s share of the estate, by certain evidence prescribed; otherwise it will be deemed an absolute gift.

It would, in our opinion, be entirely contrary to the character of an. advancement, that it should be viewed in the light of a debt upon interest, as contended by the counsel for the appellant. The very claim in this case proves that such could not have been the intention of parent or child. Fifty-six years elapse from the time of the advancement to the settlement of the estate in the probate office; so that the interest, if allowed, would amount to nearly four times as much as the sum advanced. If this allowance could be made, few children would be willing to take an advancement and run the hazard of having their estates swallowed up by it, as might frequently happen.

An advancement is usually made with a view to set up the child in business, or on the event of marriage. It has never been thought this was a borrowed capital on which interest was to accumulate; and we are confident no case can be found, either in England or in this country, where such a claim has been allowed.

In the case at bar, an appearance of equity has been given to the claim, by setting the advancement of one child * against that of the other, and claiming interest only [ * 359 ] upon the excess in favor of the son. But if the principle is admissible at all, it must apply as well where there is no such set-off, as where there is. The parent, in the case before us, well knew the difference between a loan and an advancement; as is evident from her taking proper security from her son, when she meant to lend money upon interest.

With regard to all the other claims made by the appellant, if they exist at all, it is in the character of debts, and not of advancements ; as they are not supported in the latter character, by any evidence of the nature which is required to prove advancements. As debts, if they are now recoverable, resort must be had to the estate of Ebeneser Breed, through his administrator; it not being in the power of the Court to consider them in the process now before' us, and, by so doing, to deprive the administrator of the right to a trial by jury.

Decree affirmed.  