
    Yeich's Appeal. [Bernheisel’s Estate.]
    . On an application for an issue, made to an auditor on distribution of a decedent’s estate, to determine whether a sum of money received by a son' from his father, in the latter’s lifetime, was a gift or an advancement, if the facts are ascertained and not disputed, the question is for the court to determine as a matter of law, and an issue will be properly refused. That one witness testified that the decedent said the money was a present is not sufficient to compel an issue.
    An auditor’s findings of facts will not be reversed except for manifest •error.-
    Feb. 22, 1889.
    Appeal, No. 383, Jan. T. 1888, from a decree of ,0. C. Schuylkill Co., dismissing .exceptions to an auditor’s report on the account of Solomon Yeich e.t ah, administrators of Joshua Bern-■heisel, deceased, who was administrator of .Isaac Bernheisel, deceased, "at Jan. T. 1887. Sterrett and Mitoi-ibll, JJ., absent. .
    The following facts were found by the auditor, John W. Roséberry, Esq.: Isaac Bernhéisel died in October, 1885. Letters of administration were granted to his son Joshua. At t'he audit of the .administrator’s account; certain of the heirs of the-decedent claimed ¡that the sum of $500, part of the'purchase money- of-real éstate ■‘sold by the decedent to Joshua, • was an advancement. On ¡this iclaim.the auditor-found-the facts as follows -: “It appears-from ¡the ■testimony that the decedent sold two tracts of land to his son Joshua, ■for the consideration of $4,000. A survey of the tracts was made by Daniel L. Boyer, on the 30th of March, 1869, who was instructed ;to prepare a deed and two bonds, one-for $2,000, payable in annual installments of $200, and another for $2,000. Of this last bond, ;$500 was not to be paid by Joshua, and the contention is whether it 'was-given to Joshua as an advancement, or asan absolute gift. The ‘only persons present at the timé of the transaction, besides the deceased and Joshua and his family, were -D. L. Boyer and Joshua '■Staller, who were examined as witnesses.' Boyer testified that the •father said to him, Joshua shall pay $4,000 for the farm, $200 every -year for ten years, and then the'other you make in a bond for $2,000 ; ■$500 of this he shall have for an inheritance, then each of the others 'will, have $500, and they' will be equal. Joshua Staller testified that the old man said he-had sold the land to Joshua for $4,000, blit he was only to pay $3,500. The other $500 he would make him a "present of — he need" never pay it.
    “ O. J. Aregóod testified that about 1877 of 1878 he made the following entry in the deceased’s book*- against Joshua, at the repeated request of the decedent, •who had been blind for several years:
    ‘JOSHUA BERNHEISEL,- BR. •
    April 1, 1869. .
    ‘ To cash received, being • part of the legacy which I ' bequeathed unto him, . . ■.....■ •." . . $500
    ‘ Said amount to run without interest.’' ' ' -
    "That he also hiadé similar’entries against two of the other children.
    “It is admitted that the'$2,000 bond, out' of which Joshua was "to have $500, was. not executed, but $1,500 cash was paid by Joshua. There is no evidence as to the payment, but it may be presumed it •'was paid when the deed was executed* May 13th,' 1869, for the-eónsideration of $4,000. ... ; .
    “After the close of the testimony and the argument on both ■•sides, Mr. Shephérd presented'the .petition-of Joshua Bernheisel, verified 'by affidavit, asking the auditor' to’ certify an issue to the 'court of common pleas, to try the'-following question of disputed ■facts, to wit, whether what'Joshua Staller testified to: ‘I gave ■Joshua-the $500 -: he need not pay it,’’is. the fact, of whether w'hat 'Daniel L. Boyer testifies, that'the $500- is'to go-'to Joshua on his ■'inheritaneé, is the fact ? In the ■ one'case, if believed, making a gift, and in the other an advancement. ■ ' ■ ;"
    - ■ ■ -“In the opinion of thé auditor this issue would not bring iip ■the material fact in this case,- which is whether the $500 is an •advancement or a gift, but simply raise an issue as to the credibility of the two witnesses, entirely ignoring the other téstiniony and Cir?cumstances bearing upon-the disputed-fact.” ■ •’ • • ’■•
    : • The auditor, after quoting from Beehlér’s Est., 3 Phila. 254, continued': “ The auditor has thus quoted at some length from'-the ■Apinion of the court [in Beehler’s Est.] to justify him in his conelusion to, refuse to recommend an issue, not because the fact in dispute, to wit: whether the $500 .is an advancement or an absolute gift, is not a material fact to. be determined, but because, in his judgment, the evidence and circumstances showing it to be an advancement, greatly predominate over, that showing it to be a gift or present. If the issue was granted, the jury would inevitably come, to the same-conclusion. Besides, in the event of an issue being directed, the estate would remain unsettled for a length of time to the prejudice of creditors and distributees, whereas, if the auditor refuses a distribution, and. submits the evidence to the court, as he proposes to-do, no harm or inconvenience will be suffered by the party aggrieved, as the orphans’ court, in the exercise of their discretionary powers, may direct the issue, and, if the auditor’s finding is not sustained, the distribution can be modified or changed without referring the report back to the auditor, and thus greatly facilitate the settlement of the estate.
    “An advancement is an irrevocable gift by a parent, in his lifetime, to his child, on account of such child’s share in his parent’s-estate. High’s Appeal, 21 Pa. 283. Our Acts of Assembly do not define an advancement, and we are therefore compelled to resort to the decisions of the courts to determine whether a sum of money, received by a child from a parent, or expended for his benefit, is a gift, or an advancement, or whether it is intended to create legal indebtedness. Miller’s Appeal, 40 Pa. 57.
    “Advancement is a question of intention. That intent must be proved to have existed at the time of the transaction, and by the contemporary acts and declarations of the parties. If there be evidence of acts done or declarations made at the time of the transactions, tending to prove that the money was intended as an advancement by the father, his subsequent acts and declarations, in recognition of the original act and intention, are entitled to weight. Merkel’sAppeal, 89 Pa. 340.
    “ The evidence shows that, after the survey was partially completed, the party went to the house of Joshua Bernheisel for dinner. D. L. Boyer testified that he then asked the old man what was his' price for the farm, and the conditions. He replied that Joshua is to pay $4,000 for the two tracts, and he, Boyer, should make a deed for $4,000, and the bonds for $2,000, payable in ten annual installments, and the other, for $2,000. Of this last bond, Joshua would have $500 for inheritance, then, each of .his children would have $500, and they would all be equal. Joshua Staller testified that the old man said he had sold the land to Joshua for $4,000, but he need only, pay $3,500. The other $500 he would make him a present of ; he need never pay it. Joshua Bernheisel was -present. The witnesses differ in respect to the declarations of the old man about the $500. Assuming both to be credible witnesses, Boyer’s testimony is entitled to much greater weight than that of Staller. He was the most capable of knowing the fact, because the old man’s remarks were directed to him in answer to his inquiry, and the instructions were given to him to prepare the papers, thus giving him a better opportunity of knowing and recollecting all that was said. It is true, as stated by Staller, that Joshua was never to pay the $500, but he evidently misunderstood the expressions of the old man as to the $500 being a present. His testimony is in direct conflict with all the other testimony arid circumstances.
    “ When there is no evidence of what occurred at the time of the alleged transaction, the attendant circumstances are to be conr sidered in determining whether it is a loan, gift or an advancement. Among the circumstances, the most important are, the amount as compared with the parent’s estate, the number of his children and the purpose of his advancements.
    “It is always a presumption that a parent means to treat his children equally. Weaver’s Appeal, 63 Pa. 309.
    “ It is held in Dutch’s Appeal, 57 Pa. 401, that a conveyance of land by a father to a child, directly, or by payment of the purchase money and having the deed made to the child, is prima facie an advancement. This presumption is greatly strengthened when the value of the land bears any considerable proportion to the father’s-whole estate. The mairi purpose of our statute, relative to advancements, is to cause equality among children, and equality in that which • may remain at the death of the intestate. See also Storey’s Appeal, 83 Pa. 89. In the latter case, the value of the land conveyed was nearly one-third of the distributive share, to which the distributee was eventually entitled. The proportion was significant enough to-intensify the presumption that it was an advancement.
    “ So in this case, the $500 deducted from the purchase money of the land is fully equal to one-third of his share of the estate. O. J. Aregood, a son-in-law, testified that he made the entries in the decedent’s book, at the repeated request of the decedent. That he said: ‘You shall write Joshua’s $500 and Elizabeth’s $200 in the book.’ ‘ That the $500 was deducted from the price of the land he sold to-Joshua.’ That, after the entry was made, he .read it to the old man, who said it was all right, he would keep them equal, although the-phraseology of the writer is not fitting. There can be no doubt that it implies an advancement. The entries-were made about 1877 or 1878. A similar entry was also made April 25th, 1877, of an advancement to Sarah of $290. The entry against Joshua, although. not made in his presence, was a recQgnition of the original act, and! a declaration of the decedent to treat the $500 as an advancement,, within the ruling in Merkel’s Appeal. -
    “ Things shown once to have existed, are presumed to continue in the same state, until the contrary is. established. Where the parent has made an advancement, the presumption is that he continued to intend it at his death, intestate,- to be divided equally. The burden is on those resisting the advancement to show a change" of intention of the parent. Neither time nor limitation affects an advancement. They should be brought into the account. Oiler v. Bonebrake, 65 Pa. 838; Hughes’s Appeal, 57 Pa. 179.
    “ The auditor, therefore, finds as a fact that $500 of the purchase money of the farm sold to Joshua was an advancement, and as a conclusion of law should be deducted from his distributive portion of the estate.”
    The auditor reported $4,025.43 as a balance in the hands of the administrator for distribution among heirs, after deducting costs of audit, etc. To this he added the advancements to the three heirs. Dividing this by four, he ascertained the share due to each to be $1,253.43. From-each heir’s share was then deducted the respective advancement.
    The following exceptions were filed to the auditor’s report: The auditor erred, 1, “ in fixing basis of distribution on distribution; ” 2, in deciding the $500 an advancement and charging the same ¡against Joshua; 3, in refusing an issue.
    The court dismissed the exceptions and confirmed the auditor’s report.
    
      The assignments of error specified, 1-3, the action of the court in dismissing the exceptions, quoting them.
    The case was submitted on paper books.
    W. F. Shepherd, for appellant.
    An advancement is an irrevocable gift, by a parent to a child, of the whole or part of what it is supposed the child will be entitled to- on the death of the parent intestate. Eshelman’s Ap., 74 Pa. 42.
    As to intent and proof thereof, see Merkel’s Ap., 89 Pa. 340.
    . . If giving Joshua $500 made the children equal, charging him with’ it 9 years afterward would make them unequal. A debt cannot be changed into an.advancement. Morn’s Áp., 80 Pa. 427.
    An issue is demandable when a matter is in dispute and there is a serious contention on both sides- as to the matter alleged. To deny it in such case is an abuse of discretion. .
    
      N. Heblich, for appellees.
    We rely upon the reasoning and conclusions of the auditor.
    March 11th, 1889.
   Per Curiam,

Tlie only question • in this case is whether the sum of-five hundred 'dollars, part of the purchase money of the real estate sold by the decedent, Isaac Bernheisel, to his son Joshua, was a gift or an advancement.- The’auditor has found, upon abundant evidence, that it was an advancement, which finding has been approved by the court below. Under such circumstances, we would not disturb the finding except for manifest error. None such appears in the case..

The demand for an issue was properly refused. The facts, Upon which-the learned auditor founded his judgment,-were not disputed. Whether the sum referred .tó was an advancement was a mixed question of law and fact. The facts being ascertained, it was -for-the court to declare the law. The only effect of an issue would have been to delay the settlement of the estate, and to consume a considerable portion of it in costs and expenses. ' The case was well decided. ■ ■

The decree is affirmed and the appeal dismissed at the costs of dihe-appellants.- ' •  