
    Jane E. Rees and Magdaline Rees, by next friend, vs. Wilson Waties Rees.
    
      Testamentary Taper — Advancements—Mother—Grand-son.
    A paper writing* by a mother, saying, * I wish all I possess in this world to belong to my dear son W., and his heirs forever, both personal and real; and everything in my press and wardrobe to my dear sister M., and to take all she washes of my things ; my diamond ring and little watch to IC. *, my large watch (that was my dear son’s) to my grand-son J.” Held to be testamentary and void, for want of attestation.
    The provision in the Act of 1791, in relation to advancements, applies as well to gifts made by a mother as to gifts made by a father.
    Where a parent having a son, and a grand-son, issue of a deceased child, makes a gift to the son, it will be treated as an advancement in favor of the grandson.
    Where a parent holds a bond against her son, and destroys the bond, intending to discharge the debt, it will be an advancement to the amount of the bond. Whether property given by a parent to her son shall be considered an advancement, is not a question of intention — no matter what the parent intended, if she leaves no will, it will be considered an advancement, if otherwise proper to be so considered.
    BEFORE DUNKIN, CH., AT SUMTER, JUNE, 1858.
    The decree of his Honor, the Circuit Chancellor, is as follows :
    Dunkin, Ch. Orlando S. Rees departed this life in April, 1852, intestate. His heirs-at-law and distributees were his widow, Mrs. Catharine Rees, and his two sons, Wm. James Rees, and Wilson Waties Rees, the defendant — the last named having become administrator. Early in July, of the same year, Wm. James Rees also died, leaving the plaintiff, Jane E. Rees, his widow, and her co-plaintiff, Magdaline Rees, his only child. By his will he had devised and bequeathed his whole estate to his widow. Soon after the decease of Orlando S. Rees, and probably in May or June of that year, Mrs. Catharine Rees, his widow, went to reside with her son, W. Waties Rees, the defendant, with whom she continued to reside until her own death. Prior to 24th January, 1853, a partition was made of the estate, real and personal, of Orlando S. Rees, deceased, among the parties above entitled to the same. On the day last mentioned, the parties executed a formal instrument, confirming the partition, and and making a settlement of the estate. In the partition of 'the real estate, a tract of some one thousand nine hundred and eigty-two acres was allotted to Mrs. Catharine Rees and the defendant, to be held in common. The slaves were allotted to each in severalty. The field negroes of Mrs. C. Rees worked in common with those of her son, aud the house servants were employed in domestic duties. The appraised value of Mrs. C. Rees’ negroes was i§S,926. On the 17th December, 1854, she sold a portion of these slaves to her son, the defendant, for $5,851, (a value fixed by appraisers, called in for the purpose,) and took his bond for the purchase money. On the 22d January, 1855, Mrs. Catharine Rees died intestate, and letters of administration on her estate have been granted to the plaintiff, Jane E. Rees. Her heirs-at-law and distributees are her son, the defendant, and Magdaline Rees, an infant, .the plaintiff, being an only child of William J. Rees, who pre-deceased his mother, the intestate. These proceedings were instituted 26th April, 1858. The prayer of the bill is, among other things, for an account of the estate, real and personal, of the intestate, and for a partition and settlement of the same. In reference to the real estate, no doubt can exist as to the right of the infant plaintiff to one , moiety of the intestate’s interest. But the defendant submits, in his answer, that her interest was not a full moiety of the one thousand nine hundred and eighty-two acres, and he resists any accounts for rents and profits, alleging that he cultivated no more than his proportion. No account is sought prior to the death of the intestate. But, on these matters of the answer, proof must be made before the commissioner to whom the subject is referred. The bill states, that for some years prior to the decease of the intestate, her son, the defendant, was her confidential agent, and had the management of her affairs, and at her decease her personal estate remained in his possession. The answer of the defendant is full and explicit. He says, that after his mother sold her own residence, “ she removed to his house, and from that time his mother and his family lived in common at his residence, which had been given him by his father, and all the negroes' were on his plantation, and under his control. He cultivated a portion of the one thousand nine hundred and eighty-two acres, &c., and he provided for all the expenses of the household.”
    Pie admits the possession of the negroes after his mother’s death, but says “he knows of no other chattels belonging to the intestate, except said negroes, the contents of her wardrobe, and such articles of value as she made gifts of, in manner thereinafter stated.” He mentions, that after the death of the intestate, he paid debts of hers to the amount of about $300. In reference to his bond of $5,85Í, he says, “he never expected to pay the principal, for that it was understood between his mother and himself that he should punctually pay her the interest, and she would not exact the principal; and he is informed that she directed the bond to be destroyed, or given up to him, but that he never had possession of it.”
    The defendant further states, that after the decease of his mother, he retained possession of all her personal property, except the gifts, of which a memorandum had been made, and which were in custody of his aunt; and the defendant, submits whether, under the state of facts, (which he recapitulates,) he is bound to deliver the property to the adminis-tratrix. Plis answer thus states these facts on which he relies: “Defendant avers that his mother repeatedly told him that what she had would be his, and his only, and he was informed, and believes, that on one occasion when the making of a will was suggested by a friend, and declined, and on another occasion, in the fall before her death, she called upon her sister to bear witness that she meant this defendant to keep all her property.” The defendant then adverts to a paper prepared by the witness, Miss Mary Waties, on the day before the decease of the intestate, to wit: 21st January, 1855, and signed by the intestate. The paper is in these words: “I wish all I possess in this world to belong to my dear son, W. W. Rees, and his heirs, forever, both personal and real; and everything in my press and wardrobe to my dear sister, Mary Waties, and to take all she wishes of my things; my diamond ring and little watch to Kate Waties; my large watch, that was my dear son’s, to my grand-son, William James Rees. January 21st, 1855. (Signed) C. Rees.” In reference to this paper, Miss Waties says: “The day before her death, she spoke to me of some of her wishes as to the disposition of some of her property, and I wrote down her wishes as she expressed them — in substance, the same as the paper set out in the answer. She signed that paper. In reference to the bequest to her son, Waties, (the defendant,) she said at the time, ‘But what is the use of saying that, for everything is his?’ While these wishes were being expressed, I ased her if she did 'not wish to leave something to her grand-child, the daughter of her son, William. She replied, ‘Yes,’ and designated a desk, which was in the room, but added, ‘ Fon can give her that.’” The witness afterwards stated that all the articles specifically mentioned in the paper were in her room, in her wardrobe, desk, &c., of which the witness had the keys. The intestate told her to give the paper to the defendant. The answer of the defendant, the entire testimony of Miss Waties, and the acts of the parties, present the circumstances upon which the defendant relies to establish a gift of the slaves by the intestate to himself. Putting aside, for the present, the paper, 21st January, 1855, the evidence of gift depends on the declarations of the intestate, as proved by Miss Waties. Such declarations, especially as between parent and child, may be very significant and positive, or they may be wholly equivocal. In Murdoch vs. McDowell, 1 N. & McC. R., 237, Judge Nott says: “The consummation of every parol gift is delivery. There must be an actual transmutation of possession and property, and the real question in all such cases is, whether the donor has parted with his dominion over it.” The repeated declarations of the intestate to the witness were, that “all she had was Waties’.” In speaking to the witness on the above subject, that of everything being Waties’, she several times said to her, “You can bear witness to that.” Both before and after these declarations, (and they were made in various forms,) the negroes were in the field, or about the house, as they had been, from the time of the removal of the intestate to the residence of her son. Do these declarations furnish evidence of transmutation of possession and property in the slaves, from the intestate to her son? Do they afford evidence that she had already parted with her dominion over them, or was it only another mode of expressing what her son says she repeatedly'told himself, “that what she had would be his, and his only.” Miss Waties does not fix the time of the declarations, but refers to them as'frequently made during the two years and upwards that she was at the defendant’s. But the defendant, in his answer, relies on a particular conversation in the fall before her decease, when she called on her sister (Miss W.) “to bear witness that she meant the defendant to keep all her property.” This was the fall of 1854, and the intestate died 22d January, 1855. In the fall of 1S54, she was the proprietor of all the slaves allotted to her in the partition and settlement of January, 1853. But the defendant says, in his answer, that on the 17th December, 1854, he purchased from his mother eleven of these slaves for $5,851, took from her a bill of sale, and gave her his bond for the purchase money. These negroes had been appraised by three gentlemen of the neighborhood, called in for the purpose by the defendant and his mother; one of the appraisers (W. E. Richardson) was examined, and said that he, at the same time, at the request of Mrs. Rees, assessed the hire of Hannah, a negro still belonging to Mrs. R., and in defendant’s possession, at $75. It seems superfluous, then, to say that, until about a month previous to the death of the intestate, no gift had been made, but that the intestate continued to exercise the usual acts of dominion which belohg to the proprietor. Between that time and her decease, there is no other material circumstance, except the paper, 21st January, 1855, and the matters which attended it. That paper is wholly testamentary in its character. The witness, who prepared the paper, says the expressions are her own, and not those, of her sister — that her sister expressed no wish to make a will, &c. The form of expression is not material; it is the declaration by her sister (the intestate) of the disposition which she desired to be made after her decease. This declaration she had a perfect right to make; but in order to give validity to the act, the law has prescribed particular forms to be observed: “I wish ail that I possess, both real and personal, to belong to my son.” This is not a gift inter vivos — it is not supposed that it constitutes donatio causa mortis of the property comprehended with those terms; on the contrary, signed by the intestate, it is a perfectly valid devise and bequest of all her real and personal estate, wanting only the attestation of witnesses; whatever she may have done with the paper after it was signed, it was only for the preservation and safe-keeping of the memorandum of the disposition she desired to be made when she should be no more. She had made no transfer of the property. She declined to make a will. “What is the use of a will, when everything is Waties’,” and everybody must know that. The meaning of this is, “no one will dispute Waties’ right.” The intestate not being sufficiently mindful that the only one qualified to dispute his right was an infant of tender years, who knew nothing, who could consent to nothing, and against whose rights nothing could be presumed. When she ceased to live, the law cast on that child the right to one moiety of her estate. The proceedings are instituted to ascertain the extent of her (the infant’s) right. No evidence has been afforded of any valid gift of the land and negroes in the possession of the defendant, and the imperfect effort of 21st January, 1855, while invalid as a testamentary disposition, confirms the inference,’ that none other had yet been made. The articles of which Miss Waties had the possession and control were never in the possession of the defendant, nor had he the right of possession. It may be that they have been very properly delivered to the several parties for whom they were intended. It is only necessary now to determine that the defendant is in no manner accountable for them.
    The evidence of Miss Waties shews very satisfactorily; that the bond of the defendant to the intestate for $5,S5l, was given up and destroyed by her directions. It is a gift to him of so much money. The Act of 1791 provides: that nothing therein contained shall be construed to give to any child of the intestate a share of the estate where such child has been advanced, by the intestate, to an amount equal to the share of another child. But if the advancement is. not equal to the share of another child, then so much of the estate of the intestate shall be distributed to such child as shall make the estate of all equal. The rights of the parties are fixed at the death of the intestate. McLaio vs. Blewiit, 2 McC. Ch., 105. It was ruled in Hamer vs. Hamer, 4 Strob. Eq., 124, that a child who has been advanced, is not compelled to bring such advancement into hotchpot unless he claims some further share of the estate of the intestate. It is ordered and decreed, that the defendant account to the administratrix of Catharine Rees, deceased, for the hire of the slaves of the intestate, from the time of her decease, and that in such accounting he be allowed for any debts of the intestate paid by him, and that the commissioner state the result of such account.
    
      It is further ordered and decreed, that the commissioner take testimony and report upon the value of the estate, real and personal, of the intestate, at the time of her decease, with liberty to report any special matter preparatory to a final order for the settlement of the estate. Parties to be at liberty to apply for any other and further order which may be necessary to carry this decree into effect.
    
      TESTIMONY TAKEN BEFORE THE COMMISSIONER.
    Miss Mary TVaties, sworn on behalf of defendant. — After the death of Col. O. S. Rees, Mrs. Catharine Rees went to her son (the defendant’s) to live with him. Col. Rees died in April, 1852, and she went to live with her son in May or June. She had sold her former residence. She carried her house servants with her to her son’s.
    The defendant lived on a place of his own, adjoining the plantation of his father’s estate; and the negroes of Mrs. Catharine Rees were worked by the defendant, together with his own, on the estate place. Her negroes were few in comparison with the defendant’s. Pier portion of her husband’s estate would not have been sufficient for her support, according to her former mode of life, uuless she had lived with her son. The negroes of Mrs. Catharine Rees (other than her house servants) were under the control of the defendant, and worked by him in common with his own, after she went to live with her son. She sold some of her negroes to the defendant. Several gentlemen appraised the negroes, and the defendant executed a bond to her for the amount of the appraised value, which was over $>5,000. That bond was given by Mrs. Catharine Rees to me, she saying as she did so, “ This is Wades’, give it to him; put it away for him.” I did put it away, and she never saw it again. After that, and before Mrs. C. Rees’ last illness, she said to me, “ You have that bond ?” I said, “Yes.” She said, “Give it to Waties or burn it.” I had kept Mrs. C. Rees’ keys and all her papers. I have heard her speak in this manner while she lived with defendant. That she was living with her son. That all she had was his. She never ordered any of her servants about. He exercised control over them. I have heard her speak so often.
    In her last illness, Mrs. C. Rees spoke to me about the bond. She asked: “You gave it to Waties, or burnt it?” I bowed my head in affirmation, saying: “ I have done as you desired” I had burnt the bond. I was present at the execution of the bond and the bill of sale of the negroes from Mrs. C. Rees to defendant. When Mrs. C. Rees spoke in connection with “ Waties,” she had reference to her son, the defendant. On one occasion previous to her death, Major Anderson had suggested to her to make a will, which had disturbed her. When I came in, she spoke to me about it, and said: “What is the use of my making a will when everything is Waties’, and everybody must know that?” She spoke emphatically. All of Mrs. Rees’ property was then in defendant’s possession. In speaking to me on the above subject, (as to everything being Waties’), she several times said to me: “You can bear witness to that.”
    The day before her death she spoke to me of some of her wishes as to the disposition of some of her property, and I wrote down her wishes as she expressed them, — in substance, the same as the paper set out in the answer. She signed that paper. In reference to the bequest to her son Waties, she said at the time: “But what is the use of saying that, for everything is his ? ” While these wishes were being expressed, I asked if she did not wish to leave something to hex grand-child, the daughter of her son William. She replied : “Yes;” and designated a desk which was in her room, but added: “You can give her that.” This conversation arose by her expressing a wish to give me those things which were in her room; and, as there was no one in the room, through delicacy I wrote her wishes down. She had said to me: “ Everything belongs to Waties;” and, when I wrote that paper, I commenced it with the bequest to the defendant. The words in that paper were mine; it was written at my suggestion and not hers, and I don’t remember that I read it over to her before she signed it. When she signed it, I gave it to her. She said: “ Give it to Waties.” I said, you do it; and she put.it under her pillow. She afterwards gave it to me, and she told me to give it to defendant. That paper contains a correct memorandum of what her wishes were. She expressed no wish to make a will. All the articles specifically mentioned in that paper were in her room, — in her wardrobe, desk, &e., of which I had the keys. When she told me what she wanted me to have, and I suggested writing it down, she said : “ What is the use, the things will be done; Waties will do it,” or words to that effect. She had often previously and then said : “ Everything is Waties’.” “ I give everything to him.” “Everything belongs to'Waties.”
    X. — I burned the bond before Mrs. Rees’ death. Mrs. Rees’ negroes worked on land of her husband’s estate, which had been assigned to her and defendant. The negroes received by Mrs. Rees from her husband’s estate, continued to be worked on those lands up to the time of her death, in common with the negroes of defendant. At the time when the paper spoken of was executed, Mrs. Rees said: “ I give everything to Waties.” “ Everything is Waties’.” She had often before said: “I give everything to Waties.” I told defendant of that paper before her death, but I don’t remember whether I gave it to him before her death or not.
    
      XX. — The negroes worked on the plantation, as referred to in the foregoing testimony, were under the defendant’s control. All the negroes received by Mrs. Rees from her husband’s estate were under defendant’s entire control; and it was while they were under his control that she used the expression, “Everything is Waties’,” &c.
    (It is conceded by plaintiffs that there is no claim in this case for furniture.)
    When that paper was drawn up, I had no idea, nor do I think Mrs. Rees had, that she was making a will. It was simply a paper indicating her wishes.
    The defendant appealed on the grounds:
    1. Because the evidence conclusively established a gift, inter vivos, of the negroes to the defendant by his mother; and his Honor, it is respectfully submitted, should have so decreed.
    2. Because the paper writing of 21st January, 1855, recited in the decree, was not, under the circumstances detailed in the evidence, testamentary.
    3. Because the defendant should not be required to account for the bond as an advancement, for the following reasons :
    i. Because the law in relation to advancements applies only to fathers and not to mothers: when, therefore, a widow makes a gift to her son, he is not required to bring it in as an advancement.
    ii. Because, where there is but one child, and the issue of a pre-deceased child or children, such child is not required to bring in, as an advancement, a gift made to him, after the death of the parent or parents of the issue.
    iii. Because, where a child owes a parent a debt by bond, and the parent destroys the debt by destroying the bond, it is no advancement.
    iv. Because the evidence shows, conclusively, that the defendant’s mother never intended that he should account for the bond as an advancement; and the decree, therefore, defeats her manifest and oft repeated purpose and intention.
    4. Because, if the gift as to the negroes should not be sustained, the defendant should not be required to account for hire before the filing of the bill, there being no demand prior to that time.
    
      Sumter, for appellant.
    The evidence of Miss Waties, and the answer of the defendant being taken as true, and the signature of Mrs. Rees as genuine, they present the whole case, under the same impression, as in the Court below, Gee vs. Hicks, Rich. Eq. Ca., 5; and present two questions, what do they mean in fact? what is their value in law ?
    The declarations of the witness must refer- to the time of the appraisement, the visit of Mr. Anderson, the execution of the bond and of the paper, and cannot be referred back further than the appraisement, and iuclude a period commencing with the Fall, and the words of the gift, importing the consideration of her support, imply that it had been paid, and that she was satisfied with it. The answer, in respect to the time, is precise, and consistent with the evidence. In the Fall of 1854, she communicates the intention of bounty; on 22d November she has negroes appraised to $5,851 ; on 16th December she took defendant’s bond for that sum, the interest to be punctually paid, the principal remitted. What is said of Hannah turns upon a mistake; is founded on the-idea that there was a hiring of one, after a gift of the whole;-: but Hannah was never hired ; the appraisement and sale (as. it is called) were not cotemporaneous. The formal transactions between defendant and his mother, the sale (so-called),, being mode and part of the gift, took place more than three weeks after the appraisement. Mr. S. commented on the' probable motives for adopting this mode of gift. Intestate carried out, in her own way, the intention of bounty communicated to defendant, in the Fall, reserving only the interest of the money, and it was to this state of facts that she called her sister to bear witness, in a conversation with her and defendant, immediately after the visit of Mr. Anderson, and to this state of facts she referred when, through, the delicacy of the witness, she was to put in writing some small gifts to her, and said, in reference to the bequest,, as it is called, to her son, “ what is the use of saying that,, for everything is his.” The whole intention of that paper,, it is submitted, is misconceived; it is supposed to be an imperfect effort to make a will, when in making it she recognized, the interest as already vested in him, and confirmed it, not only by the paper, but by getting his assent to the minor gifts, which was the object of its delivery.
    
    The inference, from the “imperfect effort,” that no disposition had yet been made, cannot be reconciled with the evidence — the giving again, as a final act, what has before been given, is common, and inconclusive. The words, “ what is the use of a will when everything is Waties’,” are supposed to mean that no one will dispute Waties’ right; but, it is respectfully submitted, what is the meaning of this testimony ? “ When she told me what she wanted me to have, and I suggested writing it down, she said, ‘what is the use, the thing will be done, Waties will do it.’ ” The question was not about disputing Waties’ right, which was recognized, but about his assenting to the other gifts; and the paper was put under her pillow, aud afterwards given to witness, not for safe keeping, but in compliance with the delicacy of the witness, for delivery to the universal donee, for his assent to the minor gifts; when he assented, as he did, before the death, he accepted his own. There was delivery and acceptance.
    Counsel commented on the evidence. Was there a doubt, on the mind of that lady, that all her property was her son’s ? Why the anxiety to know that the bond was destroyed, and that nothing should remain in evidence? By what-hypothesis do counsel, on the other side, account for these declara.tions and acts ?
    Premising now, that the possession of the defendant was not that of a servant, or agent, or trustee, or bailee, but that -of the master of the house, what do all these declarations -and facts amount to in law ?
    Mr. S. quoted and commented on Reid and Colcock, 1 N. & McC., 603; Spears and Blasinghame and Davis and Davis, 1 N. & McC., 223,225; McDonell and Murdock, 1 N. & McC., 237; Domat, vol. 1, p. 36, and vol. 1, p. 60; Fowler and ■Stuart, 1 McC., 504; Caldwell and Wilson, 2 Spears, 77; Gr.angeac vs. Jlrden, 10 Johns., 293; Yancey and Stone, 7 Rich. Eq., 18; Etheredge and Partain, 10 Rich. Eq., 207; Blake and Jones, HaA. Eq., 141; this last, a case of creditors, here volunteers.
    Cannot a Chancellor presume a gift, where a jury would ? Is a change of forum a change of fact? If so, we are enti-titled to an issue, to have our case ground out in that machinery; but, in fact, we ask no more than what has been done and set up in this Court.
    The difficulty seems to be in the delivery and transmutation of possession, and McDonell and Murdock is referred to; that was a case of donatio causa mortis, and the presiding Judge had said that, in other parol gifts, the evidence would be sufficient, but in cases of this sort, actual manual delivery was necessary, and for that misdirection, and for saying that a jury might give an alternative verdict, the case was sent back.
    In other cases, ex. gr. in a loan, the obligation is not contracted without delivery. These obligations, where the party is to make restitution, are contracted by the intervention of the thing, although the consent of parties be also necessary. Domat, vol. 1, p. 36.
    Our case is not one of loan, or donatio causa mortis, where restitution is contemplated; but even in case of a loan, suppose Mrs. R. had loaned a slave to one, having them already in charge,for any purpose, would a manu traditio have been, necessary to the loan ? or if she had loaned, or committed them in charge to anybody, and then sold them to him, would it have been necessary? “Delivery is made, if the buyer had already the thing sold in his custody, by another title, as if it was deposited into his hands, or if he had borrowed it.” Domat, vol. 1, p. 60. And so we contend of a gift inter vivos, and, I think, this is not, in fact, a question of delivery, but of intention. If the Court see that she intended delivery, they were delivered. The transmutation of possession would have been an idle ceremony; there was a transmutation of property and dominion. “ Declarations of gift by an owner of a chattel, are to be construed most strongly against him, and are to be defeated only by unequivocal proof, on his part, that a present gift was not made.” Circuit inter alia, Yancey and Stone, 7 Rich. Eq., 18 ; and an administratrix for volunteers is in the same position.
    It is not to be omitted, in any part of the case, that there was a consideration for the gift, which is fatal to the idea of a testament or of an advancement.
    Is the paper of 21st January, 1855, a nullity? or worse ?
    In Brinkerhoff and Laurence, 2 Sandford, 401, 406, it is said: “Against sustaining donations, either mortis causa or inter vivos, there are many strong expressions in the books of the common law; the reason of this is, that gifts of both classes are usually claimed upon parol evidence, unsustained by any writing, and the Courts have uniformly set their faces against such claims, on account of the great danger of perjury. When the intent of the donor is proved under his own hand, there is no such danger, and, accordingly, the Courts have presumed a delivery in support of the gift, on slight evidence.”
    Here it is not perjury, but the Act of 1S24, that frightens my friends on the other side, more in their character as legislators, perhaps, than as lawyers.
    In Fowler and Stuart, 1 McC., 504, the words were, concerning a horse, that the boy used to ride, “ I beg you to recollect, I have given that horse to my son;” suppose, after-wards, in articulo mortis, she had written, I wish that horse to belong to my son, but I wish him to give the silver mounted Spanish saddle to B, and delivered the paper, and he had assented, would that have invalidated the previous gift, because it had not three witnesses ?
    It was a paper writing delivered, capable of passing, limiting, reserving a use, creating a trust in personalty, by delivery of the writing itself. Brummett and Barber, 2 Hill, 547; Dupre and Harrington, State Rep., 391; daggers and Estes, .2 Strob. Eq., 343.
    
      The paper confirms the intention and supplements delivery. “If an instrument can operate in some character which appears to have been intended, it will not be held testamentary, especially not, when it has not the requisite formalities of a will, and holding it testamentary, would be declaring it void.” Carter and King, 10 Rich.
    As to the gift or destruction of the bond being an advancement.
    I. This proceeded from the mother, and advancements apply to fathers only. Holt vs. Frederick, 2 P. Wins., 356 ; Toller, 300; 2 Williams Ex’rs, 1287.
    The words of the writ, de rationabili parte bonorum, are: “ Nee in vita patris promoti fuerunt." In Holt and Frederick, L. King says: The statute of Charles was founded on the custom of London, and he might have said, that it was in conformity to other customs of the Kingdom of Great Britain, and to general custom, and to the law de rationabili parte bonorum. However hasty or bad his reasons, he stated the law of advancement correctly, as known in England, time out of mind, and used ever since ; he was resisting a novelty, the attempt, by deriving the statute from the successio ab intest ato, to engraft on it the civil law rule, that advancements might proceed from mothers, who hold estates in that law, in a way different from our laws of Baron and feme.
    Upon what could collation proceed in a widow’s estate ? Upon that portion of her husband’s estate distributed to her, and once already subjected to collation upon his death. The words of the third section of our Act are satisfied by applying them to the subject matter, to which, at the time the Act was passed, they could alone be applied, namely: the estates of fathers; it being then, and before, and always law, that the title, advancement, only concerned father’s estates. It is clear that this is an attempt to adopt the civil rule, and I ask for the authority.
    In Haves and Haywood, 1 Jones Eq., 256, N. C. R., it is said: “ It is true that under the English statute of distributions, none but the children of an intestate father are bound to account for advancements, because the father only is under a legal obligation to provide for his children; but our statute of 1792, re-enacted in 1836, uses the words he or she, Mm or her, in reference to the intestate, where children are to account for personal property given to them, or put into their possession in their father’s lifetime. Both sexes are clearly embraced by these words, and we do not feel at liberty to repeat them, but are bound to hold that the legislature intended to apply them to an intestate mother, as well as an intestate father.”
    II. Where there is á child, and the issue of a pre-deceased child, and a gift after the death of the father of the issue, we may look to the reasons, for collation, between children and grand-children, viz: that a grand-child shall bring into hotch-pot with a child, because he derives, through Ms father ; he must collate, where the parent would, what the parent received. Proud vs. Turner, 2 P. Wm., 560; but I think it has not as yet been decided that a gift to a grand-child, the father being dead, shall be collated. “ The statute of. distributions is restricted to gifts from a parent to a child, and does not include donations to grand-children. This holds clearly where there are only grand-children; is it so when there is a child and a grand-child? “Where a grand-child hath received some advancement, not from his father, but from his grand-father, whether or no he shall collate with the brothers of his father, not decided. The grand-child takes, as representative of his father, and therefore, as it seemeth, should not bring his own portion, but only his father's portion into hotchpot.” Duty of Executors, p. 287.
    So, if this bond had been given to complainant, she ought not to collate it, and if so, ex sequali jure, defendant ought not to collate with her.
    “ If the grand-father had endowed his grand-daughter, the father being alive, she would be obliged to bring into the inheritance of her father the portion which the grand-father had given her; it was the same as if the father had given the portion out of his own estate. Domat, vol. 1, B. 11, p. 674.
    III. The destruction of the bond is not an advancement. The bond constitutes the best evidence of advancement; its destruction, evidence that it was settled.
    The synopsis of Gilbert vs. Wetherall, Simons and Stuart, vol. 1, p. 444, (or vol. 2, p. 254,) would seem to decide that the destruction of a debt, (or rather, in that case, of the evidence of a debt) was an advancement; but the case was not so; although intestate destroyed a note, he said: “Now Thomas owes me 11,000 pounds;” afterwards they signed an account. The V. C. said: “ The circumstances under which the note had been destroyed, amounted to an equitable release of a debt,” but held the account stated, an advancement, and it is clear that he went into the case to see if it was an advancement or not, and if the father so intended it; and
    IV. It is respectfully submitted, that the destruction or gift of the bond, or negroes, is not an advancement, because of the intention of the intestate, who did not intend equality, and said so, when the bond was delivered. Can a man give to issue, otherwise, than by way of advancement? Can he, in his lifetime, by any act, segregate a portion from his estate, in favor of a child, as well as a stranger? He may give the whole to one, cannot he give a part, over and above to one; and if he does so, and so says, and so intends, and so conveys, by any means the common law will afford him, how can a legislative will, intended to apply to what is to be distributed, and not to what has been, by himself, forever cut off, override his complete and legal disposition, in his lifetime. Such interference, seems inconsistent, with the true idea of property, and would restrict the jus disponendi, among issue, to a mode provided by statute, which is ambulatory, and for various reasons not acceptable to all persons.
    The case of partial gifts supposed, is not as in Youngblood vs. Norton, 1 Strob. Eq., 125, an interfering, with distribution, or valuation at the death, but a severance, by a complete act in the lifetime; the intent and quantity of intent, impressed on the transaction at the time; so, in that case, it is said, that “ what arc advancements, may be absolutely fixed, by the intentions of the parties, at the time, if they can be ascertained,” and so in Domat, vol. 1, b. 11, sec. iii, p. 692. “The things given to children, or other descendants, that they may have, what is given, as an advantage, over and above what the other children, their co-heirs have, are not brought, into the. mass of the inheritance collated, if it is evident, that it was the express will of the donor, that what he gave, should remain with the donee, as an advantage, over and above his equal share, with the rest of the heirs, or that it should not be subject to collation.” Sive quispiam intestatus moriatur, sive testatus, omnino esse collationem, nisi expressim designaverit, ipse, se velle non fieri collation-em,” &c., Nov. 18, c. 6. The only novelty here, is in the “sive testatus,” which we have not adopted. A parent may give, and not advance, or viceversa; otherwise, a father in bestowing absolutely an exclusive bounty, upon a deserving son, or in releasing an improvident one from jail, with iutent to start him even again, with the rest of his children, would have to approach the object of his bounty, with caution, or swear him to secrecy, for if detected, the statute, would defeat his purpose. What a man does with property, belonging to him at his death, is a testamentary act, as in Youngblood vs. Norton; but the question is, what does belong to him ? In that case, the $600 was to be accounted for in the distribution. Here, the principal of the bond was never to be paid — the interest to end with her life, and “ nothing to remain in evidence.’’'’ Defendant might have said: The negroes I hold by sale-bill, and I settled with my mother for them. Mitchell vs. Mitchell, 8 Ala., 414, 422, considers this question fully, and looks into the custom of London, where “the father, could by any act, in his lifetime, give away any portion, of his personal estate, to one of his children, provided he divested himself of all property in it,” and concludes, “ Our opinion, therefore, is, that when either money or property is advanced to a child, it will prima facie be an advancement, under the statute, and must be brought into hotchpot; but it may be shewn, that it was intended, as a gift, and not as an advancement.” I contend, here, that the destruction of the bond is presumption that it was settled — and the onus to prove it an advancement is on the other side. In Connecticut, where the Act is a copy of Act of Charles II, they go too far, in Johnson vs. Belcten, 20 Conn., 322, where it is held, that there must be satisfactory evidence to make a gift a chargeable advancement. There, as in England, a deed for love and affection, is prima facie proof of advancement. Hatch vs. Straight, 3 Conn., 31. So Meeker vs. Meeker, 16 Conn., 383 ; Phillips vs. Chappell, 16 Geo., 16.
    The words of our Act are not when a child shall have received, but when he shall have been “advanced,” and remains accountable. The condition in life of the parties, forbids the idea of advancement. Defendant being of age, married, settled, fully advanced by his father, in his lifetime, rich compared with his mother, providing for her, a purchase in his name, by his mother, would have been a trust, and not an advancement.
    If defendant is to account, we ask, that he be allowed to account, for the negroes or the bond, at his option, and only, from the filing of the bill or demand.
    
      Fraser, Moses, for appellee.
    
      Spain, Richardson, for appellant.
   The opinion of the Court was delivered by

Dunkin, Ch.

It can scarcely be contended that, prior to 17th December, 1S54, when the defendant purchased from the intestate slaves to the value of f5,S00, she had already made to him a valid gift of her whole estate. If the paper signed on the day before the death of the intestate be not testamentary in its character, but a gift, inter vivos, then, if the intestate had recovered, her whole estate had passed from her; for, by that paper, no life estate is reserved, nor is the gift thereby rendered invalid in the event of her restoration. It is true that the language of the paper was that of the witness who prepared it; but, to give it any effect for the benefit of the donee, it must be regarded as adopted by the donor: and, when she says, “ I wish all I possess in this world to belong to my son and his heirs forever, both real and personal,” and disposes of her wardrobe to her sister, it is a manifest declaration of what she intended to take effect in relation to her estate after her decease, and fulfils all the requisites of a last will and testament, wanting only the attestation of witnesses to give it effect as such.

The remaining grounds present questions not made at the hearing, and, therefore, not considered in the decree; but they are, nevertheless, very properly now submitted to the judgment of the Court. It is contended that the doctrine of advancements is not applicable to the estates of widows; and for this proposition the appellant adduces the authority of Lord Chancellor King in Holt vs. Frederick, 2 Peere Williams, 356. It is true it was so held, “although,” as the reporter says in a parenthesis, “ without much debate.” His lordship decided that “ the statute of distributions was grounded on the custom of London, which never affected a widow’s personal estate;” and “ that the Act seems to include those within the clause of hotchpot who are capable of having a-wife as well as children, which must be husbands only.” If this course of reasoning could be sustained, it would apply not only to the principle of advancements, but to every other canon in the former statute of distributions in relation to the estates not only of widows, but of married women, and of spinsters. Each clause of that statute (A. D. 1712) 2 Stat., 524, refers to the estate as that of a man; nor is there any provision, as in the Act of 1791, that, in the event of the death of a married woman, leaving a husband surviving her, the distribution of her estate shall be the same as that of his. But the argument of the learned serjeant, in Holt vs. Frederick, is quite satisfactory. “ The word his takes in both sexes, as mankind comprehended both; and homo was hie velhcec homo\ that the act of Parliament intended an equality among children, and this favorite doctrine in equity ought to be extended as well in case of a mother as a father.”

But the Statute of 1791 was passed in pursuance of the provision of the Constitution directing the Legislature to abolish the right of primogeniture, and provide for an equitable distribution of the estates of intestates. All the principal clauses refer to the intestate as him, and to the estate as his. The tenth and eleventh clauses provide for the distribution of the estate, “ on the death of a married woman,” leaving a husband or leaving no husband. But for the distribution of the estate of a spinster no special provision is made; and for the obvious reason above stated in the argument of Holt vs. Frederick, and that any more restricted construction would fall short of the declared purpose of the statute. But the clauses should be construed together, as in pari materid. The Act provides that, in the event of the death of a widow, her estate “ shall be distributed among her descendants and relations in the same manner as therein before directed in case of the intestacy of a married man.” The subsequent clause in relation to advancements refers to the previous canon for distribution among the children or issue of the intestate, and should be taken, and has always been taken, as part of that canon. No new or additional order of distribution is declared, but provision is rather made for an equitable administration of the prior canon. The estate of the widow must be distributed in the same manner. Although no express adjudication has been adduced from our reported cases, yet such seems to have been the received opinion from a very early period after the enactment of the statute, as may be seen by reference to Grimke’s Law of Executors, p. 2S5 (published in 1797), and ex parte Lawton, 3 Des., 201, note.

The remaining grounds in relation to advancements may be considered together. It is true that, while the child is alive, a gift to the grand-child may not be an advancement; but gifts made to the grand-child, after the death of his parent, must not only be brought into the account, but all previous advancements to such parent in his lifetime. Then it is said the release of a debt, or rather the iutentional destruction by the parent of the evidence of a debt due to him by his child, is no advancement. On 17 December, 1854, the intestate owned eleven slaves, which she, on that day, sold to her son, taking his bond for the purchase money. If, instead of selling him the slaves, she had made him a deed of gift of them, it would seem clearly an advancement. If, instead of selling the slaves to her son, she had sold them to a stranger, taking his bond for the purchase money, and she had transferred the bond to her'son, it would be not less an advancement. And so, when she released, or gave up, or destroyed, his own bond to her, it was an advancement of so much money, and must be so accounted for.

Then it was said that the intestate did not intend that her son should account for the bond as an advancement. This can hardly be said to be a question of intention. A father may give his son half his estate and declare, by the most formal instrument, that he does not intend it as an advancement; but, if he afterwards die intestate, the law precludes such son from any share in the inheritance, unless he bring such previous gift into hotchpot. What is, or is not, an advancement may depend on circumstances, as in Murrell vs. Murrell, 2 Strob. Eq., 148 ; Cooner vs. May, 3 do., 185 ; and Ison vs. Ison, 5 Rich. Eq., 15; but the mere declarations of the donor cannot alter the operation of the law either as to the character of the gift, or even the mode of valuation. See Youngblood vs. Norton, 1 Strob. Eq., 122.

In reference to the fourth ground of appeal, it may be remarked that the infant plaintiff is certainly entitled to an account from the death of the intestate, and, being the sole distributee, the whole object of the administration was to establish her rights.

This Court perceive no error in the decree of the Circuit Court, and it is ordered and decreed that the same be affirmed.

Johnston and Wardlaw, CC., concurred.

Decree affirmed.  