
    Sarah Ann Bell vs. Silas Champlain and Thomas Champlain.
    In an action of ejectment, the plaintiff claimed to recover an undivided half of the premises in question as one of the heirs at law of L. 0., deceased, the mother of the plaintiff and of one of the defendants, who died intestate, seised of the premises. The defendants, by their answer, set up as an equitable defence that L. C. had, prior to her death, executed to the plaintiff, by way of advancement, a deed of about 100 acres of land, which was of greater value than all of the residue of L. O.’s property, and worth more than the plaintiff’s share of her estate. Held, that the answer was available only by way of an equitable defence; and that, to make out a complete equitable defence, under the statute, (1 B. 8. 784, §§ 23, 24, 28,) the defendants were bound to prove not only the making by the intestate of the conveyance by way of advancement, but also that such advancement was equal or superior to the amount of the share which each child would be entitled to receive of the real and personal estate of the deceased.
    
      Held, also, that the answer would have been clearly bad, upon demurrer, if it had not contained the averment that the advancement was equal, or superior, to the plaintiff’s share of the personal and real estate of the deceased; and that the burden of proving that part of the answer was upon the defendant. That it was part of a material affirmative averment.
    
      Held, further, that the plaintiff’s right of recovery could not be defeated except by clear, distinct proof, satisfactory to the jury, establishing the equitable defence that the plaintiff, in the lifetime of the deceased, had received, by way of advancement, her full and equal share of the estate of the deceased.
    MOTION for a new trial, on a case and exceptions, directed to be heard in the first instance at General Term.
    The action was ejectment, brought to recover the possession of the undivided one-half of 59 acres of land in Potter, Yates county. The plaintiff, in her complaint, claimed to recover the undivided half of said 59 acres, as one of the heirs-at-law of Lucy Champlain, deceased, the mother of the plaintiff, and of the defendant Silas S. Champlain. The first answer was a general denial. The second answer set forth that the plaintiff and the defendant Silas S. Champlain were her only heirs-at-law. That the plaintiff is not entitled to any interest in said premises as heir-at-law of said deceased. That said Lucy Champlain, with the intent of making an advancement to the plaintiff, and giving her the share or portion of her interest in her estate, on the 25th of July, 1867, conveyed to the plaintiff about one hundred acres of land, in fee, in the town of Milo. That the plaintiff received said deed as an advancement, and as her share or portion of the real estate of her mother. That said Lucy Champlain afterwards died intestate, seised of the land mentioned in the complaint, and of personal property to a large amount. That administration on the estate of said Lucy Champlain, deceased, had been granted to one Jareb D. Bordwell. That the personal estate of said Lucy inventoried at $5,434.58, but that there were debts and claims against the estate of said-Lucy to a large amount. That a large amount of the assets have not been collected, &c. That the land conveyed to the plaintiff by her mother was, at the time of said conveyance, superior in value to the plaintiff’s share of the real and personal property of the mother. That the personal estate of the deceased had not been settled, and the amount for distribution not ascertained. -
    The issue joined in said action was trigd at the Yates circuit, in October, 1871. On the trial, the plaintiff proved the death of said Lucy Champlain, and that she died seised of the 59 acres in question, intestate, leaving the plaintiff and the defendant Silas S. her only heirs-at-law. That the defendant Silas S. and his family entered into possession of said 59 acres on the death of the mother, and was still in the possession. That the plaintiff demanded to be let into possession as tenant in common, which was refused by the defendants, before the commencement of this action. She also proved the value of the rents and profits, and rested.
    The defendants, to prove the issue on their part, introduced and read in evidence a deed from Lucy Champlain to the plaintiff, dated July 25, 1867, for one hundred acres, described in the answer. The consideration expressed in the deed being one dollar. The defendants offered to prove by the witness Franklin, what he understood from Mrs. Champlain at the time of executing the deed -to the plaintiff, to which the plaintiff objected. The court overruled the objection, and the plaintiff excepted. The plaintiff objected to the witness testifying what he understood from Mrs. Champlain, unless in the presence of the plaintiff. The objection was overruled, and exception by the plaintiff. The evidence'was received. The plaintiff objected to the defenants proving what was said by Mrs. Champlain after the execution of the deed. The objection was overruled, the evidence received, and exception by the plaintiff.
    After the evidence was closed on the part of the defendants, the counsel for the plaintiff requested the court to hold and decide that the defendants must show that the plaintiff had received her full share of her mother’s estate, before they could succeed in their defence. The court refused, and held and decided that it devolved upon the plaintiff to prove that the advancement to her did not amount to her proper and just share; to which the plaintiff excepted. The court, among other things, charged the jury that the fact to be determined by them was, whether the Milo farm was given by the mother to the plaintiff as her portion, or whether she was to have that and share equally with her brother besides. The counsel for the plaintiff requested the court to charge the jury that before the defendants could succeed in this action, the jury must find from the evidence before them, (if they should find that there was any advancement,) that there was an advancement of her full share of the real and personal estate of her mother. The court refused; to which the plaintiff excepted.
    The jury found a verdict for the defendants.
    The plaintiff obtained leave to make a case containing the exceptions, and that they be heard, in the first instance, at G-eneral Term.
    
      D. B. Prosser, for the plaintiff.
    I. The court erred in permitting the witness Franklin to testify as to what he understood from Mrs. Champlain ; because it is never competent for witnesses to testify as to their understanding. They must state facts. Their understanding is wholly incompetent, unless accompanied with the facts. The understanding of the witness was clearly inadmissible, unless he could state what was said, or the substance of what was said. It was wholly immaterial what the witness might or might not have understood, unless he could have stated what was said. What the witness might or might not have said could not be evidence. He should have stated what he did say, according to his recollection.
    II. The court erred in holding, on the trial, that it devolved upon the plaintiff to prove that she had not been advanced, in the lifetime of her mother, her just proportion of her mother’s estate: Because, 1st. The defence set up in the answer was an affirmative defence, which the defendants were bound to prove. The answer alleges that the plaintiff had been advanced her full share of her mother’s astate, real and personal. This averment in the answer was necessary, in order to constitute a defence to the action; for unless the plaintiff had been advanced her full share, she was entitled to be let into the possession of the premises as tenant in common with the defendant Silas S. 2d. It certainly did not devolve upon the plaintiff to prove the negative, and thus prove that the allegation in the answer was not true. It would be establishing a new rule of evidence, unknown to the law, to require the plaintiff to disprove the allegations in the answer before any evidence was given to sustain such allegations.
    III. The court erred in charging the jury that if they found that the deed from the plaintiff’s mother to her was an advancement, they should find for the defendants. 1st. Section 23, (1 R. S. 705,) provides, among other things, “that when the advancement is equal or superior to the amount of the share which such child would be entitled to receive of the real and personal estate of the deceased; then such child and his his descendants shall be excluded from any share in the real and personal estate of the intestate.” Under the provisions of this section (and it is the only one which relates to the present question) it is evident that in order to exclude a child from any share in the real estate of an intestate parent, the advancement must be equal to the share of such child in the real and personal estate of such parent. If not equal, then such child, until actual partition, is entitled to the possession of the real estate of such intestate, in common with the other heirs. 3d. Unless the plaintiff can obtain possession in common with her brother of the real estate of which their mother died seised, she is entirely remediless; she cannot commence proceedings for partition while the premises are held adversely to her, and have the equities between her and her brother adjusted.
    IV. The exception by the plaintiff to the court refusing to charge as requested was weH taken: 1st. The material allegation in the answer is that the advancements to the plaintiff exceeded the value of her share or interest in the real and personal property of her mother. Without such, or a similar allegation, the answer would have been defective, under the 33d section, before cited. The court should have instructed the jury that they must be satisfied, from the evidence before them, that it was an advancement of her full share of the real and personal estate of her mother. It is insisted that under the provisions of the statute before alluded to, the advancement must be equal to or exceed the share of the plaintiff in order to defeat her action for possession, as tenant in common, so as to place her in a position to commence her action for partition, in which action the equities of the plaintiff and her brother can be fully adjusted. 3d. The verdict of the jury, if permitted to stand, will deprive the plaintiff of all right to any further share of her mother’s estate, although the advancement in question may be less than one-half, or even one-quarter of her interest. The verdict is, in effect, finding that the allegations in the answer, that the plaintiff had received her full share, are true, and the plaintiff is precluded thereby from all future claim to her mother’s real or personal estate. The defendant Silas S., it is submitted, is not in a position to justify himself in resisting the claim of the plaintiff to the possession in common of the property in question; he is the wrongdoer in attempting to withhold such possession, and the only possible justification for such conduct is the establishing by the defendants the fact that the plaintiff had in the lifetime of her mother been advanced her full portion. Nothing short of establishing such fact affirmatively can protect the defendants, and it may be questioned whether even that would preclude the plaintiff from the possession in this action.
    
      Charles G. Judd, for the defendants.
    I. In respect to the rulings of the court on the admission and rejection of evidence. The exceptions taken to the admission of proof of the declarations of Mrs. Champlain were not well taken. These declarations were made at the time of the execution of the deed by her, and before its delivery or acceptance by the plaintiff, and these were part of that transaction—res gesta. Besides, the ground of the objection is not stated, and consequently the objection is of no avail. (Valton v. The Nat. Fund Life Ass. Co., 20 N. Y. 35, per Grover, J. 33 Barb. 336. 2 Hilt. 137. Walsh v. Wash. Ins. Go., 32 N. Y. 440. Sanford v. Sanford, 61 Barb. 302. Matter of Paige's will, 6 Albany L. Jour. 126.) The proof of the declarations of the deceased mother of the plaintiff were competent to prove "that her deed to the plaintiff was intended as an advancement. (Hicks v. Gilder-sleeve, 4 Abb. 1, 5. Dayton's Surr. 561-564.) The verdict ought to have been for the defendants, even if the rulings excepted to had not been made. (61 Barb. 302. Matter of Paige's will, 6 Albany L. Jour. 126.)
    II. The decision of the court, that the burden of proof was on the plaintiff, after an advancement to her had been proven, to show that such advancement was not equal to her share of the whole estate before she could recover in this action, was correct. (1 R. S. 754, §§ 23, 24.) The plaintiff was bound to make out her case, and inform the court and jury how much land she was entitled to recover in this action. This, in case she had received an advancement of anything, could only be determined by proving the value of such advancement and the whole amount to which she was entitled, and if the advancement was less than this amount, she would be entitled to recover so much as to make up the full amount to which she was so entitled. This is the provision of the statute. (Parker v. MeCluer, 36 How. 304.) “The proof of an allegation of deficiency lies upon the party who alleges it, although it implies a negative; for this is not to prove a mere negative, but to prove an actual relation in point of magnitude or value.” (Berty v. Dormer, 12 Mod. 526.)
   By the Court, E. Darwin Smith, J.

When the plaintiff rested, at the trial, she had made out a complete case, entitling her to recover an undivided half of the premises in question. She had proved that Lucy Champlain, the mother of the plaintiff, and of the defendant Silas. Champlain, about two years before the trial, had died intestate, seised of the said premises. That the plaintiff and the said defendant Silas Champlain were her only heirs-at-law, and that the defendants, at the time of the commencement of the suit, were in possession of the said premises, and upon demand for that purpose duly made, refused to let the plaintiff into possession of the same as tenant in common. The defendants had, by their answer, interposed as an equitable defence, and sought to establish, at the trial, that the plaintiff, previously to the death of the intestate, had received from her, by way of advancement, a deed of about 100 acres of land in the town of Milo, in said county of Tates, which the defendants, in said answer, averred was, at the time of said conveyance, of greater value than all of the residue of the property, real and personal, of the said Lucy Champlain, and superior in value to the amount of the share which said plaintiff would have been entitled to receive from the real and personal estate of said deceased. The case, upon the whole evidence, was submitted to the jury upon the question whether the conveyance of said lot of land to the plaintiff, fully proved as stated in the answer, was an advancement to her, or was so intended by the intestate; and the jury found for the defendants. The case comes here upon exceptions ordered to be tried at the General Term in the first instance. Some of the objections taken to the admissibility of testimony taken during the trial I think well taken, particularly those respecting the questions put to the witness Franklin in respect to what he understood from Mrs. Champlain, the intestate, at the time of the execution of said deed; but as there is one exception to the charge, which I think fundamental and erroneous, upon which a new trial must be granted, I will abstain from discussing particularly these and the other exceptions. The answer was available only by way of an equitable defence. To make out a complete equitable defence under the statute, (1 R. S. 754, §§ 23-25,) the defendants were bound to prove not only the malting by the intestate of the conveyance, by way of advancement, but also that such advancement was equal or superior to the amount of the share which each child would be entitled to receive of the real and personal estate of the deceased. This was averred in the answer, but not proved at the trial. The learned judge correctly charged that it was for the defendant to make out, by a fair balance of the evidence, that such conveyance was an advancement to the plaintiff, and that upon that issue the defendants held the affirmative; but he charged, also, that if they found that this advancement was to be considered her share of the estate, or was to be applied on her share, then their verdict should be for the defendants. To this part of the charge, and particularly to that portion of it where the court directs the jury that if they found it was an advancement then the defendants were entitled to a verdict, the plaintiff’s counsel duly excepted. The plaintiff’s counsel then asked the court to charge the jury that before the defendants could succeed in the action, the jury must find from the evidence— if they found that there was an advancement—that there was an advancement of her full share of the personal and real estate of her mother. The circuit judge refused so to charge; to which refusal and ruling of the court the plaintiff’s counsel duly excepted. These exceptions, I think, were well taken. The rulings of the learned judge virtually relieved the defendants from proving the averments of their answer, or quite a material and essential part of it. The answer.would have been clearly bad upon demurrer, if it had not contained the averment that the advancement was equal, or superior to the plaintiff’ s share of the personal and real estate of the deceased. The burden of proving such part of thé answer was upon the defendants. It was part of a material affirmative averment. The plaintiff’s right of recovery could not be defeated, except by clear, distinct proof, satisfactory to the jury, establishing the equitable defence which the statute had authorized and allowed, that the plaintiff, in the lifetime of the deceased, had received, by way of advancement, her full and equal share of the estate of the deceased. The verdict of the jury, under the charge, clearly does not establish such a defence. There should, therefore, be a new trial, with costs to abide the event.

[Fourth Department, General Term, at Rochester,

September 10, 1872.

Mullin, Talcott and E. D. Smith, Justices.]  