
    Edwin Putnam’s Adm’r v. The Heirs of Edwin Putnam.
    The law of Ohio regulating descents and the distribution of personal estates, provides for advancements as to real, but not as to personal estates.
    This is a bill in chancery, reserved in Muskingum county.
    This bill was filed for the purpose of obtaining the direction of the court as to the distribution of the personal assets of the intestate amongst his heirs, and suggesting, inter alia, that William R. Putnam, a son of the intestate, died before the intestate, leaving two infant daughters his heirs. He was in solvent, and no administrator was ever appointed. Edwifi Putnam died intestate. The bill sets forth further that E. Putnam, the intestate, in the lifetime of himself and Wm. R., his son, made large advancements to his son, which constituted a debt which was charged in the father’s books against the son, which was not to be paid by Wm. R., in his father’s lifetime, but was to be accounted for and settled with the administrator, and be deducted and retained out of the distributive share of the-estate to which said Wm. R. might become entitled.
    The bill claims that Wm. R.’s children are liable to account for this indebtedness, and prays that they may be required to bring it into hotchpot, or pay the same to complainant, before they receive shares of said estate. He prays the direction of the court in the discharge of his trust.
    The answer of the minor daughters of Wm. R. denies any indebtedness by their father; but, if there ever was any claim, it is long since barred by the statute of limitations, being a common debt; and if not barred, they deny their liability for it. They deny that it is in law an advancement, and say, also, that, by the law of Ohio, there can be no advancement, except of real estate. They claim, also, to inherit directly from their grandfather, and not from their father.
    There are similar claims made in the bill, against some of the other children who are living.
    
      O. 0. Corners, for complainant.
    The first provision of the legislature, in relation to advancements, is found in the “ act regulating the course of descents and distribution of personal estate,” passed February 22,1805; (1 Chase 515.) The first ten sections of this act prescribe the course of descents of real estate. The 11th section provides, “ that where any of the children of the intestate, or their issue, shall have received from the intestate, in his lifetime, any real estate, by way of advancement, and shall choose to come inte partition with the other parceners, such advancement shall be brought into hotchpot, with the estate descended.”
    The 15th section of the same act provides, “ that if a,ny person shall die intestate, leaving any goods, chattels, or other personal estate, such goods, chattels, or other-personal estate, shall be distributed agreeable to the foregoing course of descents, saving, however, such rights which any widow may have to any portion of such personal estate.”
    The law of descent of real, and the law of distribution of personal estates, are, by this statute, made identical.
    The subsequent acts regulating descents and distributions, passed December 30, 1815, (2 Chase 906,) and February, 1824, (2 Chase 1313,) are, in their provisions, in all respects, similar to the law of 1805, except that, in the first section of each of these acts, the course of descents is slightly modified. So far as advancement is concerned, however, these three statutes are precisely alike.
    The “ act regulating. descents and the distribution of personal estates,” passed February 24,1831, (which repealed the act of 1815,) was in force when the intestate died. That law contains the identical provisions embodied in the two former laws, in relation to advancements and to the distribution of personal estates. The only difference is in the numbering of the sections. As to all the language used in the act of 1831, in-relation to advancements and to the distribution of personal estates, the terms employed in that act are the exact words contained in the prior laws of 1805 and 1815.
    This section touching advancements, does not “ prescribe a new “ course of descents.” It- designates no different persons as “ heirs entitled to the estate.” It is only subsidiary to the course of descents prescribed in the preceding sections, being designed to secure unimpaired that equality of division so evidently contemplated by all of the prior provisions of the law. It is simply incidental to and in aid of such prior provisions. It is designed to guard against the injustice of one of the heirs, in the line of “prescribed ” descent, obtaining more than his equal participation in the whole estate, to the prejudice of those standing in equal right with himself; and this, too, contrary to the intention of the common ancestor.
    When, therefore, the legislature declared, in the 10th section, that “ personal estate should be distributed agreeably to the foregoing' course prescribed for the descent of estates,” it ■designed to subject the distribution of personal and the descent of real estate to one and the same rule — to make “ distribution” and “ descent ” identical.
    The act of 1831, in distributing personal estate, is designed to accomplish what had been long before established, by. the legislature, as the settled policy of this state — to conform the ■course of distribution to the course of descent. It is a just and equitable policy. It should not be disturbed by courts, unless the intention of the legislature to change it be clearly ■expressed. A slight transposition in the order of the sections is .surely not sufficient, especially when the present law contains the precise language of all former laws. It is upon such slight transposition, (and that alone,') that the respondents rely as superseding — what, it is admitted, obtained under the former law — the application of advancement, a hotchpot to personal as well as to real estate. It will never do to hold that even slight verbal deviations in our statutes, (as from time to time revised,) from former laws, shall change the construction of the law.
    The remarks of Mr. Justice Cowen, in Davis v. Shields, (24 Wendell 329 and 330,) are, in this connection, quite apposite. He says: “ I will not now do more than advert to the general evil of considering every literal or verbal deviation, in our revised statutes, from the former acts which they adopt, as a change in substance. He had occasion to consider it, in some measure, at the last term, especially in respect to the statute of frauds; and daily observation confirms the views then expressed, with regard to all such former statutes as entered into and governed the general business of the community. They made, .and will continue to make, a part of the commercial and social habitude; and even where an alteration was obviously intended, or was plainly expedient or necessary, a century must perhaps go by ere the change' will be actually effected. Some fifty or more years have passed since a very necessary alteration was made, by statute, in the denomination of our currency; and, although the necessity was universally conceded, perhaps fifty more will not practically complete the change. To make the numerous verbal alterations in our revised statutes, in all or even a majority of instances, an actual departure from the former law, would be to open Pandora’s box. The evils would be intolerable, and the whole community would at once demand their repeal.” See also the remarks of the same Judge, in Douglass v. Hoaland, (24 Wendell 45, 46, 47 and 48.)
    Much less should a mere change in the collocation of the sections, made during a general revision, the entire language remaining untouched, be suffered, of itself, to change the construction.
    This doctrine of advancement is a most just and equitable one. It equalizes the distribution,‘among his children, of the estate of a parent, who happens to die intestate, in exact accordance with his declared intent. It combines two ingredients, which always find peculiar favor in a court of chancery: equality, and conformity to the expressed intentions of all parties.
    It is admitted that, in this state, advancement applies to real estate. Why, by mere implication, withdraw it from personalty ? It is just as equitable (and no more so) in the one case as in the other. To do so would mar the symmetry of the law, as it has always prevailed in Ohio, touching the disposition of the estates of intestates, which prescribes one and the same rule for all estates — real as well as personal — and that a rule which seeks, in all cases, equality of distribution.
    But, the “ act relating to wills,” passed March 23, 1840, (Swan’s Coll. Stat. 998,) in .operation at the time of the intestate’s death, and still in force, shows beyond question, that the legislature regard the principle of advancement, both as to real and personal property, as in full operation in Ohio. The 43d section of this act provides for the cases of an after-born child and a child absent and reputed dead, at the time of the execu tion of a will — declaring that such children “ shall take the same share of the estate, loth real and personal, that they would have been entitled to, if the testator had died intestate.” The 44th section provides, “ that in settling the extent of the claim of any child, as provided for in the preceding section, any portion of the estate of the testator, received by a party interested, ly way of advancement, shall be deemed a portion of the estate, and charged to the party who has received the same.”
    The studied object- of these provisions is to place the after-born and absent children upon the same footing as if-no will had been made. They are to take as in case of intestacy; and shall, therefore, as in case of ordinary intestacy, be charged with u any portion of the estate ” (the entire estate — the same estate mentioned in the preceding section, and that is the “ estate loth real and personal“ received by way of advancement.”
    These provisions assume the advancement as an established incident of intestacy, not thereby created for the first time, but as already existing under prior legislation.
    If anything were needed to remove the doubt which, in the opinion of the respondent’s counsel, the change in the order of the sections, in the act of 1831, seems to occasion, that doubt is fully dissipated by the full and unequivocal recognition of advancement, both as to personal and real estate, contained in this act relating to wills.
    
      Roswell Marsh, for the minor heirs of Vm. R. Putnam.
    At common law nothing was held an advancement but a particular estate in hands. 2 Black. Com. 190 ; 2 Kent Com. 420.
    All extensions of the principle are by statute. In England it was extended to personalty by 22 & 23 Charles 2d. See 2 Black. Com. 516 ; 4 Kent 417. In Ohio it is expressly restricted to real estate- advanced to a child or children of the intestate, or their issue. Swan’s Statutes, pages 287 and 288,. sections 2 to 12 inclusive. This restricts it to real estate, and to the lineal heir, and as I claim, to the person to whom the estate descends. The child of the intestate to whom an estate descended from his father, could not be required to account for the value of an estate in lands which the father had conveyed to one of his children, a grandchild of the intestate, for the consideration of natural love and affection. The converse of the-proposition I hold to be equally true.
    In most of the states, or rather in most of those whose statutes I have, had the opportunity to examine, the principle is extended to personal property by the express language of the statute. It is so in Pennsylvania. See Park & Johnson’s Digest Penn. St. 287, sec. 16; 2 Wharton’s Digest 177; 4 Wharton’s-Reports 130 ; 6 Watts 254.
    In New York the same principle is adopted. See Rev. St. vol. 1, page 754, sec. 23, 24, 25, and 26. Sec. 26 reads thus:: “ The maintaining, or educating, or giving of money to a child, without a view to a portion or settlement in life, shall not be-deemed an advancement.”
    It will be seen that, under this statute, not a single item of the account set up in this case could be claimed to be an advancement.
    The commencement of the 23d section is in the following, language: “If any child of an intestate shall have been advanced by him by settlement or portion of real or personal estate, or both of them, the value thereof shall be reckoned,” etc.
    And the concluding part of the section reads, “ then such child and his descendants shall be excluded from any share in the real and personal estate of the intestate.”
    Eor the construction of this statute see 24 Wendell’s Reports 329. The statutes of New York are equally definite on. this subject. See Laws of New York, page 178. In Massachusetts the statute of 1783, chapter 36, section 7, prescribes a similar rule, but much difficulty being experienced in determining whether any particular transaction was or was not to be held an advancement, the legislature, by the act of 1805, chapter 90, section 3, prescribed that nothing should be held an advancement which was not expressly stated to be such in the account in which the charge was made. Under this statute it has been held that an advancement could not be proved by oral testimony. 2 Pick. 337; 22 Pick. 508. That interest is not chargeable on an advancement; 17 Mass. 355; 3 Pick. 450. That a mere debt cannot be charged as an advancement; 17 Mass. 81, 356 ; 22 Pick. 508. That charges in the usual form of various sums of money in the ancestor’s - common book of accounts, although placed in a different part of the book from the other charges, and near a charge of an advancement to another child, did not constitute an advancement; 4 Pick. 21.
    I refer to the above authorities and statutes to show that it is the common understanding, and acted upon by the legislatures well as the courts, that advancements of personal property form no part of the common law, but are created and regulated wholly by the statutes. The statute of Ohio restricts advancements expressly to real estate, and coming as it does after those parts of the statute by which the rules of descent and distribution of both the real and personal estate are prescribed, taken in connection with the statutes of other states and of England, and the rules of common law on the same subject, must be holden to be entirely conclusive that the legislature of Ohio intended by express terms to restrict the principle of advancement to real estate.
    The contrary doctrine has been found to be prolific of embarrassments and litigations in the settlement of estates, and the legislature of Ohio wisely determined to shun the source of so much family difficulty and contention..
    So far as I have been able to ascertain, this is the first suit in Ohio in which the attempt has been made to set up an advancement of personal property in the settlement and distribution of an estate.
    
      Facts similar in character to those existing in this case must be of frequent occurrence, and that no attempt like the present has heretofore been made, is at least very strong evidence of the opinions of the profession throughout the state, that the principle contended for in this case by the complainant could not be sustained.
    An advancement is defined to be a part of the- estate advanced by an ancestor to his heir in anticipation of what he would inherit. Bouvier’s Law Die. 61. It follows from the definition that it cannot be a gift, for a gift is without consideration and can never be called into account in any way. It cannot be a debt, for a debt is demandable and payable, and this has been so treated by the intestate by receiving payment of a part, and alternatively by complainant, by claiming that respondents be decreed to pay the amount to him. An advancement does not carry interest, because it is not a debt due, and no suit will lie to recover it. The party who has been advanced in real estate must account for its value at the time he received it, without interest, and no more. As a debt, then, there are two answers. 1st. It is barred by the statute of limitations. 2d. They cannot be made responsible for it.
    It is not an advancement by any-test, having no quality of one. The laws of Ohio recognizé no advancement of personalty. It is not an advancement to the respondents, and cannot affect their claims upon their grandfather’s estate.
    The above brief outline of the views of the counsel for the minor children of Wm. R. Putnam, was prepared to be submitted to the court on the circuit, where counsel was unable to attend, and of course without definite knowledge of the means by which complainant’s counsel would claim to sustain their case before the court.
    The complainant’s counsel seems to have been not a little embarrassed in preparing his bill, in what aspect to present his claims against the respondents, and has, therefore, given them a sort of double but not distinctly an alternative form. He claims that they are an indebtedness on the part of the several respondents respectively, and yet not to be paid to the intestate, still he prays that they may be decreed to pay the several amounts to him, or account for them on distribution, which last, in a proper case in law and fact, might be either on the principle of a set-off or an advancement. The same uncertainty seems to have brought the representative of the widow of the intestate and the widow of Wm. R. Putnam before the court, under the idea that they might be interested in the funds claimed to he in the hands of the respondents. As to the widow of the intestate, if the children of the intestate were indebted to the estate, and those debts had been collected, they would have formed a’portion of the assets and been distributable accordingly.
    Had suits at law been brought against the sons and the personal representative of Vfm. R., whatever other defense might have been set up, a claim of advancements would have had nothing to support it. It is claimed as potent evidence of advancement, that all the sons’ accounts open on the same day with a charge of a gross sum as the expense of their education. It is truly said that this could not raise an indebtedness on the part of the son. The inference that, therefore, it must be an advancement, is not only a palpable non sequitur, but the reason given for it negatives the possibility that it could be an advancement. Nothing can be an advancement which might not have constituted the subject-matter of indebtedness between the parties.
    The statute of New York, before referred to, is in coincidence with the definition of the term advancement, as settled by the courts in England and this country. It is defined to be all or a part of a child’s portion, advanced in anticipation, to establish him in business or set him up in life.
    It is hence not a gift, for no account is ever to be taken of that.
    It has no one quality of a debt, for under no possible change of circumstances cán any portion of it be reclaimed either to pay debts -or to equalize distribution. So far as bound by law, the party advanced must bring it in to partition with his coheirs, or refusing to do so, content himself with what he has, and receive nothing more. A widow’s portion or dower cannot be affected by it, as she can claim no portion of personalty so advanced, or any thing in respect of it, any more than she can claim dower in an advancement of real estate.
    Her claim is to dower in the real estate, and to a certain portion of the. assets remaining after payment of debts, etc. Assets must be liable to the payment of debts. An advancement is not so liable, and, therefore, is not assets.
    The widow of Wm. R. Putnam is also made a party. Why, I do not perceive, unless it be upon the hypothesis that she, as his widow, may have a claim to a portion of the estate of Edwin Putnam. The idea will not be without some foundation when it shall be established that the portion of his father’s estate which would have descended to him, had he survived his father, can be taken from his children to pay this alleged indebtedness of his, and if this, then, pari ratione, any other indebtedness of his, and then an administrator of Wm. R. Putnam’s estate becomes a necessary party to this suit. Here would be an administrator engaged in administering assets which descended to his intestate after his death.
    Is the proposition at all relieved by considering it in the light of an advancement to Wm. R. Putnam ? It seems to me not, clearly. My wards are the heirs at law of Edwin Putnam, who last died seized and possessed of real and personal estate. They trace genealogy through Wm. R. Putnam, a son of Edwin Putnam, who died in his father’s lifetime. They claim title both to real and personal estate by immediate descent from their grandfather. ■ He died intestate. How can their rights be affected by any transactions between their father and grandfather ? I am unable to discover. I have thus far considered the case in this supplementary argument, as if there was evidence of the facts stated in the bill going to establish transac tions of some kind to the amounts stated in the bill. No testimony has been taken, however, in the case. The bill refera to an account book as the book of the intestate containing the family accounts, in which are contained the charges set up in the bill, but it is not made a part of the bill or an exhibit in the case, nor is any evidence offered of the authenticity of the book or of the genuineness of the charges contained in it. The fact of advancement or indebtedness is not admitted in the answers, nor can I waive any point of defense for my wards in the case, except that the entire book is in intestate’s handwriting. In the same book is a writing not referred to in the bill, but which is confidently relied on by complainant’s counsel to sustain his case. It purports to be a draft of a will of Edwin Putnam in his handwriting, dated in A. D. 1839, but never executed so as to be admissible to probate. No proof is offered respecting it. It cannot therefore be considered. It is relied upon as showing the intentions of the intestate respecting the distribution of his property. No inference of intention can be legally or safely drawn from it. The fair and legitimate inference would be, that, had it conformed to an intention definitely formed, he would have perfected it as a last will and testament. He lived nearly five years after it purports to have been written, and never made a will. He did not then intend that paper to guide the distribution of his estate, and if a man may be fairly presumed to intend what he deliberately does, then Judge Putnam in tended to die intestate, and that the law should distribute his estate. The paper is of a testamentary character. It is a will, or it is nothing. If a will, it passes the property, and the pleasure of the testator stands as the reason of his conduct. If not a will, within the statute, it can have no influence upon the distribution of the estate without in effect repealing the statute of wills. Even if a will duly proved, it could make no disposition of the matters in controversy in this suit, if advancements, because no longer under the testator’s control. They might influence him in distributing the property subject to his control, whether debts or advancements, just as he might have pleased, but as he has not chosen to exercise that right, it is idle speculation to conjecture what he might have done had he made a will.
    Again, an advancement must possess that character distinctly in the contemplation of both parties when it is made, or it can never become so afterwards at the option of either party. It is a contract to all intents and purposes, and as such must receive the assent of both minds at the time it was made. Now will any one suppose that in sixty different small transactions, often when they were separate, both understood each as an advancement in anticipation of death, and not as a gift or loan ? If, therefore, the inchoate will could be competent evidence it could not sustain the bill, as it is only the declarations of the'complainant’s intestate, made long after the transactions, unknown to the other party and not binding upon him. It might be very convenient in many cases to turn a debt into an advancement, to elude difficulties subsequently arising, as, by the creditor after it was barred by the statute of limitations; by both to defraud creditors; by the debtor to avoid payment, and in many other cases. The character of the act therefore must be fixed by some distinctive mark attending the act itself, to make it an advancement, as prima facie a transaction between father and son creates the same liabilities as between strangers. Ashley's case, 4 Pick. 21, is on all fours with this.
    Here the father received payment in part of the debt after most of it was incurred, showing conclusively that he considered it then as a debt, payment of which was to be procured whenever practicable. ■
    Whether it was a debt or advancement, my wards are not responsible for or affected by it. Whatever its character might be held to be in England, under the statute of distributions, or in our sister states, whose statutes make personal property a proper subject of advancement, by the laws of Ohio nothing but real estate can constitute an advancement, and therefore the claims set up in the bill against my clients cannot be sustained.
    
      
      U. J. Jewett, for other defendants,
    also submitted an argu ment.
   Avery, J.

By a law of the state, (Swan’s Statute 283, section 12,) if any child of a parent who has died intestate, shall have received from the intestate in his lifetime, any real estate by way of advancement, the value of such real estate, at the time of such advancement, shall be considered a part of his .share on partition, unless such value shall be greater than his share; and then, such advancement shall be considered as his full share, and the estate shall be equally divided amongst the •other heirs of the intestate.

The law of the state divides the inheritance amongst the •children and heirs of a deceased parent so fully in accordance with the general sense of what is just, that the great body of the men who have property to leave behind them, are content to let the law make the distribution amongst their children; And hence, estates are continually passing into the hands of ■heirs by the operation of law. To secure the perfect equality which, unless for some special reasons, parents generally desire, •the foregoing provision respecting advancements was introduced into the law; and the justice and propriety of it will not be denied. The same sense of equity which declares that a •child who has received his portion, by way of advancement, in a farm, shall not come in with the other children, to take a .share in the remainder of the estate, requires the application of the laAV to advancements of personal property. The bill in the •case before us claims that such is the existing law, and asks a •distribution of the assets in conformity with that principle ; and the only question we have to decide is, whether the present law extends to advancements of personal property.

The 10 th section of the statute above referred to, declares ■that, if any person shall die intestate, leaving any goods, chattels, or other personal estate, such goods, etc., shall be distributed agreeably to the foregoing course prescribed for the descent of estates, which came not to the intestate by descent. devise or gift. It will be observed that there is, in the statute* a provision, in so many words, upon the subject of advancement as to lands; but none is found there as to personal property. If the 10th section, relating to the distribution of personal estate, had followed that which relates to advancements of land, it would admit of plausible argument, that advancements as to personal estate, also, were intended to be embraced in the law. But to the act as it appears, and especially with the several sections arranged in the order in which they are found, we are not able to give the construction which is desired. We are unable, indeed, to discover any sufficient reason for the distinction made in the case. Other states of the Union, at least many of them, have not made it, and we suppose it has happened here without design. As it is, however, by the construction which we are obliged to give to the law, advancements of personal estate cannot be noticed; and, consequently, cases will not unfrequently arise, where, against the apparent intention of the intestate, his children must share very unequally in his property, and sometimes, for the very reason that one species of property has been made the subject of advancement. As, for instance, where a child has received land, he is compelled, in effect, to surrender it up, before he can claim any further share in the estate; whilst other children of the same parent, to whom personal estate has been advanced, equal to it in value, may retain the amount, and still claim a full share in the remainder of the estate. \

To avoid the inequality which would be inevitable without any law on the subject, as to personal property, and which, in some instances, would result from a law confining advancements to land, we should be satisfied, if the rules of interpretation would permit us to extend it also to personal estate. But as it is, the complainant can have no remedy in our courts, for the evil supposed to exist, according to the statements of hia bill.

The hill is dismissed.  