
    Frederick Palmer, App’lt, v. Mary L. Culbertson et al., Resp’ts.
    
    
      (Court of Appeals,
    
    
      Filed October 9, 1894.)
    
    1. Evidence—Pakol.
    Parol evidence is admissible to show that a deed was intended as an advancement.
    2. Will—Advancement.
    An advancement can be made by a conveyance by intestate to his son’s wife.
    3. Same.
    In such case, it is incumbent upon the other children to establish, by satisfactory evidence, that it was made ,to her as an advancement of her husband’s share.
    4. Same.
    The land advanced, in case a life estate is reserved in it, must be deemed to have been given at the time of the intestate’s death.
    5. Same—'Valuation.
    The consideration mentioned in the deed was presumed to have been inserted as the value of the land in the estinlation of the parties at the time of the conveyance.
    Appeal from judgment of the general term of the supreme court in the fifth judicial department, entered upon an order, which affirmed a judgment in favor of defendants entered upon the report of a referee.
    
      S. Hubbard, for app’lt; K A. Nash, for resp’ts.
    
      
      
         Affirming 48 St. Rep. 505.
    
   Earl, J.

The learned counsel for the plaintiff claims that there was no evidence sustaining thé findings' of the referee as to the alleged advancement to the plaintiff. But a careful reading of the evidence satisfies us that there was abundant evidence. The plaintiff within a few days after- his father’s death admitted to a number of persons who were called as witnesses for the defendants that his share of his father’s real estate had been conveyed to his wife, and substantially that he had no interest as heir in the land left by his father. These admissions by fair implication embrace the purpose for which the conveyance was made and received, and that the plaintiff lcnew such purpose and acquiesced in the conveyance for that.purpose. There is also evidence that the plaintiff consulted the attorney who drew the deed to his wife and was with his father when the deed was drawn, and that the deed was actually delivered to him. All this evidence is rendered very probable and greatly strengthened by the fact that the 59 acres conveyed without any consideration was equal in quantity and value to one-fourth of the real estate then owned by the intestate.

It is quite true, as claimed by the plaintiff’s counsel, that so far as reliance is placed upon the admissions of the plaintiff, all that he said in making the admissions must be considered and weighed in determining the force, bearing and extent of the admissions.' But all that was said by the plaintiff being considered by the referee, it was for him to draw the inferences and determine what he meant to admit and what the truth as to the facts admitted really was.

It was competent for the defendants to show by parol evidence that the deed was intended as an advancement, and such is the rule in all the states, except a few where by statute a different rule of evidence is prescribed. 4 Kent’s Com. 418.

There can be no doubt that an advancement could be made by the conveyance to his wife. If the conveyance had been made to him, under the circumstances disclosed in this record, it would, without any direct proof, have been presumed to have been made as an advancement. Astreen v. Flanagan, 3 Edw. Ch. 279; Proseus v. McIntyre, 5 Barb. 424; Sanford v. Sanford, 61 id. 293. But as the convejmnce was made to his wife, it was incumbent upon the defendants to establish, by satisfactory evidence, that it was made to her as an advancement of the plaintiff’s share. Delly v. Love, 60 Md. 603; Stewart v. Pattison, 8 Grill (Md.), 46; Rogers v. Moyer, 59 Miss. 524; Rains v. Hoy, 6 Lea (Tenn.), 303.

It is provided in the Revised Statutes (Part 2, chap. 2, sect. 25) that the value of property advanced “shall be estimated according to the worth of the property when given.” The referee found the value of 59 acres at the time of the conveyance to be equal to one-quarter of the value of the whole farm as the intestate then owned it, and they must have borne the same relative value at the time of the death of the intestate, and such is the effect of all the evidence as to value. The counsel for the plaintiff contends that as the intestate reserved a life estate in all but three acres, the value of such life estate should have been deducted to reach the “worth of the property when given.” We think the land in which the life estate was reserved must be deemed to have beengiven at the time of the death of the intestate when the gift could first vest in possession. Any other construction of the language used in the section would work absurdity and might lead to injustice. On the one hand, if the value of the land is to be estimated as of the date of the conveyance, it might be unjust to a party situated like the plaintiff to take the actual value of the acres conveyed, disregarding the life estate ; and on the other hand, it would be unjust to the other children when all the children came into their shares at the same time, to wit, the death of the intestate, to estimate the value of the plaintiff’s share diminished by a life estate which had then-ceased to exist. The purpose and object of the section require the construction we give to it. But there is a further answer to this claim. In the earlier part of the section it is provided tha.t “ the value of any real or personal estate so advanced shall be deemed to-be that, if any, which was acknowledged by the child by an instrument in writing.” The- consideration mentioned in the deed to plaintiff’s wife, the payment of which is acknowledged, is $4,720, which is the total of eighty dollars per acre for the 59 acres. We must presume that this sum was inserted in the deed as the value of the land in the estimation of the parties at the time of the conveyance. The wife in taking the conveyance, stood for the plaintiff. He assented to the conveyance and knew its contents. Her acknowledgment of the value must be deemed his acknowledgment, and as the sum mentioned is beyond any dispute equal to one-fourth of the value of the whole farm, as it then existed, all controversy about value is foreclosed by force of the statute.

The defendants were not bound to show that this advancement was made in full of the plaintiff’s share in both real and personal estate. Here land alone was in controversy, and it was sufficient for them to show that the advancement was in full of plaintiff’s share in the land of his father, leaving him to share with the other children in the personal estate.

We have thus covered all the material points mentioned in the argument on behalf of the plaintiff. Other exceptions taken are not of sufficient importance to need particular attention now.

The judgment should be affirmed, with costs.

All concur, except Andrews, Oh. J., not sitting.

Judgment affirmed.  