
    GEORGE BATTON ET AL. v. JAMES L. ALLEN ET AL.
    1. A father had recovered a judgment against one of his sons, and caused an execution to be issued thereon and put into the hands of the sheriff. After the son’s death, the father signed a writing at the foot of the execution, in these words: “I hereby discharge J. W. Caldwell, sheriff &e., from all liability whatever of the above-stated execution, the defendant being dead, and no further proceeding required on the same.” The father afterwards died intestate, and there was a balance of his personal estate, for distribution, of about ¡¡>14,000, exclusive of the amount of the said judgment. The deceased son left three children, and six children of the intestate father survived him. Held, that the said writing given to the sheriff did not discharge the debt, so as to entitle the children of the deceased son to an equal seventh of the said balance, but that the amount of the debt should have been added to the said balance, and one-seventh of the whole sum decreed to each of the six surviving children; and that the amount of the debt should constitute so much of the seventh to be distributed to and among the children of the deceased son.
    2. A note given by a son to a father, is not, of itself, evidence of an advancement by the father.
    3. Proof of mere parol declarations of a father, that he had fully advanced a child, is not sufficient to establish an advancement.
    Michael Allen, late of the county of Gloucester, died intestate, in May, 1840, leaving six children living, and three grandchildren, the children of his son James, who died before him. Henry Allen, his eldest son, administered; and at the October Term, 1842, of the Orphans’ Court of Gloucester, made a final settlement, by which a surplus of $14,870.73 was found in his hands for distribution. At the December Term, 1842, application was made to thaA court to decree and settle the distribution of the surplus. The three grandchildren claimed a full seventh, in right of their deceased father. This was resisted by the surviving children, on the ground that James, the deceased son, had, as they claimed, been advanced by the intestate in his lifetime. A judgment in favor of Michael Allen, against his son James, for $700 debt and $5 costs, was entered in the Common Pleas of Gloucester, on a bond and warrant of attorney, on the 15th of June, 1835. Execution was issued on this judgment, and put into the hands of the sheriff of Gloucester, in the lifetime of James. After the death of James, Michael Allen signed a writing at the foot of the execution, in these words: “ 1 hereby discharge J. W. Caldwell, sheriff, &c., from all liability whatever of the above-stated execution, the defendant being dead, and no further proceeding required on the same.”
    Certain notes given by James to his father, of dates prior to the bond and warrant, and against which the statute of limitation had run, were exhibited.
    The Orphans’ Court, after hearing testimony, decreed that distribution of the said surplus be made in equal seventh parts; one-seventh to each of the six surviving children, and the remaining seventh to be divided equally among the children of the deceased son James. Neither the amount of the said judgment, nor of the said notes, was included in the said surplus.
    From this decree an appeal was taken by the surviving children to this court.
    The respondents, in their answer to the petition of appeal, say, first, that no appeal lies from the said decree to this court; second, that the decree is right, and ought to be affirmed.
    The testimony on the part of the surviving children is as follows:
    Abigail Stout. — She heard the intestate say he had advanced money for his son James; she does not know that she ever heard him say how much; heard him say he did not desire to make a will; she kept house for him better than nine years; she heard him say he had let James have money before she came to live with him; she knew James to get of his father, after she went to live with him, one hundred and ten dollars in pork and forty dollars in cash; she recollects intestate’s telling her he had advanced to James as much as he thought proper at that time; he told her, one day, that the law made a will good enough for him.
    Being cross-examined, she said James died about six years before the time of her examination as a witness; Michael Allen died in 1840; James was not present at any of the conversations she had with Michael; Michael charged the one hundred and ten dollars for the pork, to James, in a book or note — she thinks a note; she is pretty certain he took a note; all she knows about James’ getting the pork, is what Michael told her; she never saw the note or book account; she heard Michael say James got the forty dollars; she did not see it counted, but she was in the house.
    Mary Moore testified that she heard Michael say he had given James all he expected to give him; that he had set him up twice; that he had not done as well as he could wish. On cross-examination, she said this eonversatien took place about eleven years before.
    Jesse C. Chew. — Michael Allen has said to me that he had advanced liberally to James. Being cross-examined, he says he thinks Michael told him he set out Henry Allen, another son, with some money and a horse, when he left his house; Enoch Allen, another son, was about thirty years old when he died; he had been away from his father’s several years before he died; his mind was impaired, and his father boarded him out; witness understood the old gentleman that he paid for the board of Enoch; witness knew three of the daughters: they lived with their father several years after they were grown; witness understood they received an outfit when they left their father’s house, but does not know what it was.
    Louisa Batton. — She lived in the house of Michael Allen about two years before he died; she heard Michael say he had let James have a good deal of money, and as much as he intended to let him have, till he saw whether there was any more coming to him or not j he said he thought he had let him have as much as he would be able to let the other children have — as much as would be coming to the other children.
    Being cross-examined, she says she is seventeen years of age j she is hired at Mr. Sherwin’s, who married one of the daughters of Michael Allen; the conversation took place at Michael Allen’s, about three years ago last summer ; there was no person present; she was in the kitchen at the time; he has told me that several times; she understood he was eighty or eighty-one years old when he died; he spoke to her frequently about his other business; she was hired at Michael Allen’s.
    Bowman Sailer. — Michael Allen stated to witness that his property at Barnesborough stood him in about five thousand dollars; that he had advanced money to James, and had got no rent for the time James lived there; Henry wished his father, Michael, to take the note which he, Henry, held against James, and keep it out of the share of his estate that would be coming to James after Michael’s decease; Michael held some- writings against Henry, for about the same amount that Henry held against James; and Michael said he went down to Salem and signed Henry’s writings away, and made him very angry, and that he got a sharp letter from Henry about it.
    The testimony on the part of the grandchildren is as follows :
    Abigail Stout, the first witness called for the surviving children, being called on the part of the grandchildren, testified as follows: She remembers when James went to Natchez; when he left Barnesborough, she heard Michael say James had assigned him notes, but she cannot tell the amount; Michael appeared to be satisfied while James lived at Barnesborough; Michael said these notes were assigned to him by James to collect, and pay him as far as they would go; he did not say all; he did not say they would pay all; he did not say whether he was satisfied or not; he did not express any dissatisfaction; this was, perhaps, three weeks before James left for Natchez; Michael and James were together several times, shortly before James went to Natchez, about their business; Michael showed her some notes; he did not show her all; Michael told her James had assigned him notes that would satisfy him for what he had let James have, in part; he did not say all. Cross-examined, she says she never heard Michael say ho had given James all he expected he would get; or that James would get no more, unless the other heirs agreed to give him more; she has heard him say he did not wish to give James any more till he knew what was coming to him of his share of his estate.
    Lydia Allen, sworn on the part of the grand-children, says — - She is the widow of James; Michael and James were frequently together before James went South, talking about their business; she heard Michael say that James owed him money, and he wished him to pay it; she knows James assigned him notes at different times; these notes were assigned shortly before James went South ; she saw Michael sign a paper at Swedesborough.
    
      Jeffers and G. D. Wall, for the appellants.
    
      Browning and H. W. Green, for the appellees.
    Cases cited on the part of the appellants: 1 Ves. 17; 1 Mad. Ch. 506; 2 P. W. 560.
   The Chancellor.

No money or other property was ad-

vanced by the father to James, as an advancement, in form. Whatever he let James have, he took his note or obligation for; he put it in the shape of a debt from James to him. The testimony on the part of the surviving children, even if all admissible, is of entirely too indefinite a character to establish an advancement, it was not claimed, I think, at the bar, that proof of mere parol declarations of a father, that he had fully advanced a child, would be sufficient. See Toller 397; 1 Atk. 407.

The counsel for the appellants rely, first, on the notes given by James to his father. A note given by a son to the father is not, of itselfj evidence of an advancement by the father. It is evidence of indebtedness by the son. The amount of the note may be recovered back from the son, either by the father, in his lifetime, or by his personal representatives, after bis decease; but no part of an advancement can be recovered back. The very object of the father in taking the note should be presumed to be, to avoid the inequality which would result, if his personal estate at his death should be insufficient to give to each of his other children an equal sum. It is not a gift; the father does not divest himself of the property. This is not opposed to the case of Wanmaker v. Van Buskirk, in Saxton 688. The opinion of the Chancellor in that case, that the amount of the bond was an advancement, was founded on the peculiar circumstances of the ease.

It was contended that the notes exhibited in this case should be considered as advancements, because they are outlawed. If nothing appeared but the fact that these notes were found among the papers of the intestate after his death, and that they were all outlawed, and could not therefore be made available as debts, it might be a serious inquiry what would be the proper presumption; whether the presumption of payment, arising from lapse of time, or the presumption that the father omitted to collect them, or have them renewed, on the ground that he was willing the son should retain the amount as an advancement. But, in my view, it is not necessary to discuss that question in this ease. Under the admissions and acts of the intestate, .it would certainly be unsafe to declare that the whole amount of these notes should be considered either advancement or debt. It appears that, shortly before James went to the South, he assigned notes to his father, in part payment of what he owed him. He also gave a bond to his father for $700, and a warrant of attorney for the confession of a judgment thereon ; and judgment was entered thereon accordingly. There is no evidence that the bond was given on a new or separate advance of money. The transaction has the appearance of a settlement between them of the amount due from James, and the confession of a judgment for the amount. I am unwilling to consider the notes as evidence, either of advancement to Jamés, or of debt due from him to the estate.

There can be no doubt that James, in his lifetime, and his estate, after his death, was indebted to his father, the intestate, in the amount of the judgment. If this debt had been released by the father to James, in his lifetime, it might, perhaps, be considered an advancement. Gilbert v. Wetherell, 2 Sim. and Stu. 254. But it remained a debt from the estate of James to his father, at the father’s death. The endorsement made by Michael Allen on the execution, discharging the sheriff from all liability whatever of the execution, the defendant being dead and no further proceedings required on the same,” did not dis • charge the debt, so as to entitle James’ children to an equal seventh of the surplus, exclusive of the amount of this judgment debt. And this discharge of the sheriff was not an advancement to James, for James was then dead.

Eor the purpose of settling the distribution, the amount of this judgment debt should have been added to the said surplus ; and should form a part of the distributive share of the three grandchildren, who represent their deceased father, James. The decree of distribution made by the Orphans’ Court, was made without respect to this judgment debt; and the children of James were decreed to be entitled to an equal seventh of the surplus, though that surplus did not include the judgment debt.

I think the decree is erroneous. The Orphans’ Court should have added the amount of the judgment, with interest thereon to the death of Michael Allen, to the surplus found by the account of the administrator as stated; and have decreed that one-seventh of the whole sum be paid to each of the surviving children; and that the judgment against James be satisfied, and the residue of the money in the administrator’s hand be paid to the children of James, equally among them. A decree to this effect will be made by this court.  