
    PARKER against McCLUER.
    
      Court of Appeals,
    
    
      January Term, 1867.
    Advancement during Lifetime of Testator.—Statutes, When to take Effect.
    An advancement may be established by parol.
    A verbal agreement between father and son, that the son should have a certain piece of land in full for his share as heir of the estate of the father, (the land being, at the time of the agreement, of proportionate value to constitute such share), without any writings being made between them, and no written evidence of title given by the father to the son is, if followed by possession and enjoyment by the son, an advancement, within the provisions of the Revised Statutes applicable to advancements to-children by their parents (1 Rev. Stat., 754) ; and if it does not appear that the decedent left any personal or real estate other than what lie-possessed at that time, so that the advancement appears to be equal, if not superior to the amount of the share which the child would have been entitled to have received from the estate as heir, such child and his heirs will be excluded from any further share in the estate of the decedent.
    Equity would interpose against the claim of the heir in such case.
    The provisions of the statute relative to advancements applies to transactions in the nature of advancements made before the enactment of the statute, although the death of the father occurred after the enactment of the-statute.
    Appeal from a judgment.
    This action was "brought "by Eunice Parker, one of the-heirs of Joseph McCluer, against Porter McCluer, a grandson of said Joseph, to recover the possession of land left by the said Joseph. Both parties claimed as heirs at law of the decedent. The defendant resisted the plaintiff’s-claim, on the ground that during the lifetime of the decedent, the decedent made an advancement to Samuel McCluer, the father of the plaintiff, of a share of his real estate, in full of his right of succession to the estate of the decedent; and the defendant alleged that he, the defendant, had acquired the title in the premises in question of all the heirs other than plaintiff.
    The facts found hy the court upon a trial of the cause are fully stated in the opinion of the chief justice.
    The supreme court held that the plaintiff was not entitled to recover, and gave judgment for the defendant; from which the plaintiff now appealed.
    That part of the opinion of the supreme court (delivered by Marvin, J.), which relates to the question of the applicability of the statute, notwithstanding the fact that the transaction occurred before the enactment of the statute, is as follows :
    “ It is said by the plaintiff’s counsel that there was no statute prior to January, 1830, relating to the advancement of real estate, and excluding the heir advanced from a portion of his inheritance :
    “ That by the revised laws (1 R. L., 313, § 16) an advancement of real estate only operated to exclude the child so advanced from a full share hi the distribution of the personal estate.
    “ In the present case, whatever occurred between Samuel and his father in relation to the 45 acres, was prior to 1830, when the provisions in the revised statutes took effect.
    “ These provisions are more ample than those in the revised laws.
    4 ‘ If the advancement in real estate has been sufficient, it will exclude the child advanced from any share in the real estate ; and if not sufficient, then he can only inherit enough to make him equal with the other children (1 Rev. Stat., 754, §§ 23, 24).
    “It is claimed that the provisions of the revised statutes can have no effect in this case, as the arrangement between Samuel and his father, Joseph, was in 1828, and Samuel died in 1829, prior to the revised statutes of 1830.
    “ The provisions of the statute referred to, are in the chapter relating'to real property by descent; and it is declared that ‘ If any child of an intestate shall have been advanced by him, a settlement or portion of real estate or personal estate, &c., &c., the value thereof is to be reckoned,1 &c.,’ and, in short, set off.
    “In the present case, Joseph McCluer, the father, did not die until Sept., 1833, long after the revised statutes were in force ; and they applied to the real estate of which he died seized and directed how it should descend.
    “ The direction is, if any child has been advanced, then such child shall not take a full share of the real estate by descent of which the parent died seized.
    “The statutes had full effect upon the descendible estate of Joseph McCluer, and although the advancement may have been made prior to the revised statutes, it was certainly competent for the legislature to enact a law which should control the descent of the real estate of persons dying intestate thereafter, which should exclude a child who had been advanced at any time.
    “ If, therefore, this was a clear case .of advancement by the father Joseph to the son Samuel, made in 1828, I should not hesitate to apply the statute, and exclude the children of Samuel from any share of the real estate of their grandfather.
    “ But tlie case does not show that any advancement was made by deed of conveyance or other written instrument.
    “It does not show in whom the title to the 45 acres in fact was.
    “ It shows that Samuel, the son, executed to Joseph, his father, a quit-claim deed of certain land, excepting and reserving the 45 acres ; that the father was at that time in possession of the 45 acres ; that the father agreed verbally that the son should have the 45 acres in full for his share as heir of the estate of Joseph, his father ; that immediately after the arrangement, the 45 acres were surveyed off to Samuel, and he went into possession, and so remained about one year, until his death, and some two years after his death, the 1 nd was sold by his administrators for the purpose of raising money to pay his debts.
    
      “ Joseph never claimed the land after the arrangement of July, 1828, nor have his heirs claimed it since his death.
    
      “ The plaintiff became of lawful age in Aug., 1849. Is not this a case for the application of principles of equity, which will prevent a recovery by the plaintiff ? If so seems to me. If we should assume that the title of the 45 acres was in the father, Joseph, the agreement to advance it to his son Samuel, in full for any anticipated share of his father’s estate, and the agreement of Samuel so to accept it, together with the part performance, by putting Samuel into possession, and leaving him and his family in full possession, until the property is in a lawful way appropriated to the payment of Samuel’s debts after his decease, make, as I think, a case in equity, equivalent to an actual advancement by a conveyance of the land. If the title wras in fact in Samuel, and the land in equity belonged to Joseph, no conveyance would be necessary to vest the legal title to Samuel, and if he agreed to accept and -hold the land absolutely as his, in full for any share he might, upon the decease of his father, be entitled to, in lands of which his father should die seized, and it should appear upon the death of his father, that such land was of the full value of any share as heir, that he would be entitled to, assuming his father to have died seized of this land, as well as that of which he was in fact seized, it would be no more than equitable that he should be excluded from any share in the lands of which his father was in fact seized at the time of his death.”
    
      A. S. Rice, for the appellant.
    —I. The plaintiff, as heir at law of Joseph McCluer, deceased, asks to recover the one undivided sixty-fourth part of the premises described in the complaint, which are conceded to be parcel of the land of which Joseph McCluer died seized. The proofs established a prima facfe right in her to recover the same. (1.) Joseph McCluer was seized of the land at Ills death, and died intestate. (2.) The plaintiff was heir to Samuel McCluer, who, had he lived, would have been heir to Joseph McCluer, and by reason of his death before the death of Joseph, the plaintiff was an heir to the one sixty-fourth of Joseph McCluer’s estate. (3.) The plaintiff was an infant when the descent was cast, and her right of entry was not barred till the expiration of ten years after she became of full age, which was on the 18th day of August, 1859, and the action was commenced on the 3rd day of August, 1859 (2 Rev. Stat., 293, §§ 5, 295, 16). (4.) The defendant was in possession claiming the entire title, to her exclusion.
    II. The plaintiff, having thus established a right to recover prima facie, the burden is cast upon the defendant to establish facts which necessarily destroy the prima facie right of the plaintiff; and if he fails to establish all those facts, and to establish them so fully and so perfectly as to enable the court to apply them to the extinguishment of the right of recovery already established by the plaintiff, the plaintiff must have judgment.
    III. The verbal agreement, made in 1828, between Samuel and his father, was not effectual as an advancement, which, under the revised statutes, Avould exclude Samuel or his heirs from a participation in the estate of Joseph McCluer. (1.) Advancements are creatures of the statute, and have no effect other than such as is given them by the statute (Thomson v. Carmichael, 3 Sandf. Ch., 120). At the time this xrnrbal agreement xvas made, the statute- (1 Rev. Stat., 313, § 16) excluded the child advanced from a participation in the distribution of the personal estate only, and it was not until January 1,1830, and after the death of Samuel McCluer, that the provisions of the revised statutes (1 Rev. Stat., 754, §§ 23, 24, 25), which are relied on in this case by the defendant, Avent into effect. (2.) When Joseph McCluer died, the revised statutes Avere in force, and controlled the descent of his real estate. But the provisions of the revised statutes are not necessarily retrospective in their operation, and it is submitted that they do not give to an advancement made in 1828, an effect different from that given to it by the statute then in force. The general rule is, that no statute is to have a retrospect beyond the time of its commencement (6 Bac. Abr., 370, Stat. C. ; 1 Blacks. Com., 44; Smith Com. Stat. and Const. Con., 679 ; Sedgw. on Stat. and Con. Law, 188, et. seq.; Id., 404, et seq.; Dash v. Van Vleek, 7 Johns., 477 ; Co. Litt., 360, a ; Murray v. Gibson, 15 How. U. S., 421 ; Plumb v Sawyer, 21 Conn., 351; Wood v. Oakley, 11 Paige, 400 ; Bailey v. The Mayor, 7 Hill, 146 ; Jarvis v. Jarvis, 3 Edw. Ch., 462 ; Butler v. Palmer, 1 Hill, 324). (3.) An advancement, to be effectual to exclude an heir, must be evidenced by grant, deed or other writing, expressing its purpose, or made under circumstances from which the purpose can legally be implied. It cannot be established by parol. There are no adjudications in this State on this point. (4.) Admitting that the transactions between Samuel and Joseph amounted in law or equity, to in advancement of the 45 acres to Samuel, and that the revised statutes cover such a case, still the defendant fell short of making out a defense, and failed to establish sufficient facts to enable the court to apply them to the extinguishment of the plaintiff sy> rima facie case. The facts found say, that 45 acres were worth, at the time of the giving of the quit-claim deed, and the making of the verbal agreement, in July, 1828, more than one-eighth of all the land owned by Joseph McCluer at that time. Applying to this statement the ordinary rules for the construction of evidence, and it means just one-eighth, .and no more, for the excess is too uncertain to be calculated or made available. To have established an entire defense, the defendant should have shown that the value of the 45 acres was equal to the one-eighth part of the real and personal estate of Joseph McCluer (1 Rev. Stat., 754, § 23); or if it fell short in value of the one-eighth part of all the real andpersonal estate of said Joseph, then the defendant should have shown its relative value, in order to have made it available as a partial defense (Id., § 24). Again, it is said in the finding of the facts, that the value of the 45 acres was more than (equal to) one-eighth of all the land of Joseph McCluer at the time of the agreement, July, 1828. To have made an entire defense, the defendant should have shown that the value of the forty-five acres at the time of the agreement in 1828 (1 Rev. Stat., 754, § 25), was equal to one-eighth part of all the real and personal estate of Joseph McCluer at the time of his death in 1833 (Id., § 23). Or, if less, its relative value should have been shown to make it available as a partial defense (Id., § 24). Observe, Joseph McCluer may have had a large personal estate in 1828, and that personal estate may have been converted into land prior to his death in 1833, or the land which he had in 1828 may have increased largely in value prior to 1833, and from the finding that the value of the 45 acres in 1828 was equal to the one-eighth part .of all the land owned by Joseph McCluer at that time, the court cannot judicially see that the value of the 45 acres, in 1828, which is the time at which it is to be estimated under the statute (1 Rev. Stat., § 25), was equal to the one-eighth part of all the real and personal estate of Joseph McCluer at that time, or was equal to the one-eighth part of all the real estate of Joseph McCluer at the time of his death. It was not for the plaintiff to make any proof on this subject, but it devolved upon the defendant to establish facts bringing the case within the statutes and to make his facts sufficiently certain to enable the court to apply them as a total or partial defense. That he has failed to do. (5.) No advancement was consummated. Joseph never gave Samuel any title.
    IY. The verbal agreement between Samuel and his father, in July, 1828, was inoperative, except as an agreement to release his right of inheritance and distribution, and as such an agreement, it was void by the statute of frauds. There never was any part performance by Samuel, the party sought to be charged. It was not insisted in the opinion of the supreme court, that the verbal agreement amounted to a legal advancement, or that it was operative as a release of Samuel’s inchoate right as heir to his father’s estate, or that as an agreement to release such right it was not- void by the statute of frauds. In fact, all these positions are conceded. The supreme court hold that, by applying eertain equitable principles to the verbal agreement, and the acts of the parties under it, and to the inferences of fact which they say logically flow from the transaction, they can work out -a case of equitable advancement, to which they apply the provisions of the statute and exclude the plaintiff; and we submit that, unless the facts establish a case of advancement in law or equity, falling within the provisions of the revised statutes, the defendant has no defense whatever.
    
      S. S. Spring, for the defendant.
    —I. The facts of the case all concur in establishing presumptive evidence . of ownership in Joseph at the time the agreement was made.
    II. The revised statutes of this State (1 Rev. Stat., 754, §§ 23, 24, 25), authorize a parent to make an advancement to his child of real or personal property either in full or partial satisfaction of his share as heir at law, &c. (1.) But it is claimed that there was no statute in this State authorizing an advancement of real estate at the time that the agreement in question was made. Joseph McGluer died in 1833, and since the enactment of the statute in question. That statute provides for the descent of real estate in that class of cases where persons die intestate seized of real estate. And in -so providing, such statute directs, that in case an heir at law of such intestate has received from such intestate an advancement, which is equal to the full amount of the share of the child so advanced, such child shall be excluded from any share real or personal of such intestate’s property. Is it not the law of descent of real estate existing upon the decease of a person dying intestate, seized of real estate, which is operative and governs as to the descent of such real estate ? If the law bars such descent to a child, upon the decease of the intestate, in consequence of such advancement having been made, wherein can it be material as to whether the law made any provisions as to advancement at the time said advancement was made ? The matter of the descent of real estate is purely a creature of the statute. And upon a change or amendment of the law relating thereto, no question can arise as to vested rights, or impairing the obligation of contracts.
    II. It is claimed that the advancement was not valid, for the reason the land was not conveyed to Samuel. There was such a part performance of the agreement, by taking possession, &c., under the contract so as to take the agreement out of the statute of frauds in equity (Malins v. Brown, 4 N. Y. [4 Comst.], 403 ; Lowry v. Tew, 3 Barb. Ch., 407 ; Parkhurst v. Cortland, 14 Johns., 14 ; 2 Story Eq. Jur., §759 ; Willard's Eq. Jur., 283-9). The ease shows that Samuel McCluer and his heirs at law have had the full benefit of the 45 acres of land as a satisfaction of. his share as heir at law, &c.
   Davies, Ch. J.

—This is an action of ejectment, in which the plaintiff claims to recover one sixty-fourth part of a certain farm, whereof Joseph McCluer died seized. He is one of eight children of Samuel McCluer, a son of Joseph McCluer.

The facts as found by the supreme court are as follows:

On the 19th day of July, 1828, Samuel McCluer, with his wife, executed and delivered to Joseph McCluer, his father, a quit-claim deed of the whole of lot No. 39, in Township No. 4, in the Holland Land Company’s survey, in Cattaraugus county^ which included the premises described in the complaint, excepting and reserving therefrom several small parcels theretofore conveyed, and also forty-five acres on the north-east part of the lot. At the time of giving such deed it was verbally agreed between Samuel and Joseph his father, that Samuel should have the forty-five acres on the north-east part of the lot, in full for his share as heir of the estate of the said Joseph ; but no writings were made between them, and Joseph gave Samuel no written evidence of title to said forty-five acres. Joseph McCluer was in possession of the forty-five acres prior to that agreement, and immediately thereafter the said forty-five acres were surveyed off to said Samuel, and he went into possession of the same, and continued in possession thereof until his death in July, 1829.

At the time the deed was given, Joseph went into the possession of the land conveyed or quit-claimed "by Samuel and his wife, and remained in possession until his death in 1833, and was seized in fee of the same at the time of his death. The premises described in the complaint form a part of the land conveyed to Joseph "by Samuel, and form no part of the land excepted or reserved from said deed. Samuel died intestate in July, 1829, leaving him surviving eight children, of whom the plaintiff is one, all legitimate and heirs to his estate. Samuel was a legitimate son of Joseph ; and had he been living when Joseph died would have taken as an heir to Joseph. Joseph died in September, 1833, intestate, and leaving him surviving seven children, heirs to his estate, and also eight grandchildren, the children of s.dd Samuel, including the plaintiff. The defendant was in possession of the land described in the complaint at the time of the commencement of the action, August 3, 1859, and claimed title to the same, to the exclusion of the plaintiff. He had acquired all the title of all the heirs of Joseph McCIuer, except the children of Samuel.

The plaintiff was born August 18, 1828, and claims judgment for the possession already mentioned as heir at law of Joseph McCIuer, deceased. About two years after the death of Samuel, his administrators, pursuant to an order of the surrogate of Cattaraugus county, sold the forty-five acres for the payment of the debts of the said Samuel. It appeared that the forty-five acres, at the time the deed was given in 1828, were worth more than oneeightli part of all the land owned by Joseph at that time. The j ury, under the direction of the court, rendered a verdict for the plaintiff for the undivided one-sixty-fourth part of the premises described in the complaint, subject to the opinion of the court at general term, which decided that the transaction between Joseph and Samuel amounted in law to an advancement from Joseph to Samuel; or if not, that the agreement, part performance, and attending circumstances were such as in equity to require that the agreement should not be disturbed by the children and heirs at law of Samuel; or if not, that the legal title to the forty-five acres was in Samuel, and the equitable title in Joseph, and that the effect of the' reservation and subsequent acts of the parties was a complete consummation of the agreement, and that the plaintiff could not recover any portion of the land described in the complaint as heir at law of Jospeh McCluer or otherwise ; and gave judgment for the defendant.

The plaintiff now appeals to this court. The provisions of the revised statutes applicable to advancements to children by their parents are as follows:

“§ 33. If any child of an intestate shall have been advanced by him, by settlement or portion of real or personal estate, or of both of them, the value thereof shall be reckoned, for the purposes of this section only, as part of the real and personal estate of such intestate, descendible to his heirs, and to be distributed to his next of kin according to law ; and if such advancement be 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, as above reckoned, then such child and his descendants shall be excluded from any share in the real and personal estate of the intestate.

“ § 24. But if such advancement be not equal to such share, such child and his descendants shall be entitled to receive so much only of the personal estate and to inherit so much only of the real estate of the intestate as shall be sufficient to make all the shares of the children in such real and personal estate and advancement to be equal, as near as can be ascertained.

“§ 25. 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, otherwise such value shall be estimated according to the worth of the property when given” (1 Rev. Stat., 1 ed., 754).

There was no acknowledgment in writing of the value of the real estate advanced to Samuel, and it was therefore proper to estimate the worth at the time the property was given. This time was the date of the deed or release from Samuel to his father in 1828, when forty-five acres were given to him, and a survey thereof made, and possession of the same given by Joseph to Samuel.

Samuel continued in possession thereof up to the time of his death, and it was subsequently sold for the payment of his debts.

Upon the facts found by the court, Joseph and his heirs would undoubtedly be estopped from setting up any claim to the forty-five acres; and if any such claim had been preferred, a court of equity would have restrained its enforcement.

It does not appear, from the finding of facts, that Joseph acquired any other real estate, prior to his death, than that which-he owned at the time of the transaction with his son Samuel, on the 19th day of July, 1828. Heither does it appear that he died possessed of any personal estate. We are authorized to assume, to sustain this judgment, that he acquired no other real estate, after the 19th July, 1828, and that he did not die possessed of any personal estate. If the plaintiff’s right of recovery was dependent upon establishing either of these facts, she should have done so upon the trial.

It having been found as a fact that the forty-five acres given by Joseph to his son Samuel in July, 1828, were worth more than one-eighth part of all the land or real estate of Joseph, we agree with the supreme court that the transaction between Joseph and Samuel amounted in law to an advancement from the former to the latter. Samuel, or his children, upon the death of Joseph, intestate, were entitled to take one-eighth part of his estate, real and personal. It not appearing that he left any personal estate or, any real estate other than what he possessed on the 19th of July, 1828, it appears from the facts found that Samuel was advanced more than one-eighth part of the estate which Joseph owned.

Such advancement being equal, if not superior to the amount of the share which Samuel would be entitled to receive of the estate of Joseph, it follows from the provisions of the revised statutes'above quoted, that Samuel and his children, including this plaintiff, must be excluded from any further share in the estate of Joseph McCluer. This clearly should be so, until it is made to appear that he died possessed of any real or personal estate other than that owned by him on the 19th July, 1828.

This action is to recover one-sixty-fourth part of the real estate which this plaintiff’s ancestor quit-claimed and released to the ancestor of the defendant, on consideration of receiving the forty-five acres, which were worth more than one-eighth part of all the real estate of the defendant’s ancestor. If Joseph then had died intestate before such advancement or gift to Samuel, such one-eighth part would have been all that Samuel would have inherited. He has received his equal share and retained the same, and his heirs now claim the one-eighth part of the residue. A more inequitable claim could hardly be preferred, and I concur with the supreme court that it cannot be maintained.

Judgment should be affirmed with costs.

All concurred in affirming the judgment.  