
    SAMUEL GORDON AND WIFE ET AL. v. STEPHEN BARKELEW ET AL.
    1. A deed in the form of bargain and sale, in consideration of SI and of love and afiection, to one son, his heirs and assigns forever, to have and to hold to the use and benefit of the said son. and his wife and their heirs and assigns forever, is, unless a different intention can be made to appear, an advancement to the son.
    2. A father put one of his sons in possession of lands, which he occupied twenty years, and then sold; and the father made the deed to the purchaser, ’wd the son received the consideration money. Meld, tobe an advancement.
    3. A father put a son in possession of a house and lot, which the son occupied during the father’s life — more than twenty years — and on which, with the knowledge of the father, he made large improvements. If the value of the house and lot, without the improvements, be not equal to a share of the whole real estate to be divided, the house and lot may be set ofi^ in the division, to the son, at its value without the improvements.
    4. If the value of the house and lot, without the improvements, be greater than a share, the house and lot may be set off to him, and he be directed to pay so much as will equalize the shares.
    5. A child who has received an advancement cannot be compelled to pay anything on account of it to the other children.
    Bill for partition of the real estate late of Runyon Barkelew, deceased. It was filed by Samuel Gordon and Abigail his wifi*, John D. Servís and Elizabeth his wife, and Ann Rue — the said Abigail, Elizabeth and Ann being daughters of the said Barkelew, deceased — against Vincent Barkelew and Stephen Barkelew, sons of the said deceased, and the children of Abraham Barkelew, another son of the said decedent, who is dead.
    The bill describes the real estate of which partition is sought, consisting of several tracts, one of which is described as a house aud lot in the occupancy of the defendant, Vincent Barkelew, a son of Runyon Barkelew, deceased, and states that about, the year 1810, Runyon Barkelew, since deceased, advanced Abraham by conveying to him and his wife, jointly, in fee, a farm called the. Dunham farm, containing about 100 acres. That Abraham, wishing to make improvements on the said farm, with moneys which had come to him through Jane, his wife, and she' being unwilling that said moneys should be used for that purpose unless the said Abraham would give her some interest in the land, agreed to give his said wife an interest in the farm, and procured the deed from his father for the said farm, to be made to him and his said wife jointly. That many years ago, the said Runyon Barkelew, deceased, also gave and advanced to his said son Stephen two parcels of land, describing theta, both of which Stephen took possession of and occupied as his own, but without having any deed therefor, for upwards of twenty years, when he sold them to William Messier, for $870, which he received to his own use, Ms father, at his request making a deed therefor to the purchaser. That the said Ruayou Barkelew, deceased, also, iu his lifetime, gave and advanced to the complainant Elizabeth a lot of land, of eight acres, which was conveyed to trustees for her use during her life and after her death to her heirs. That the lands so given to Abraham, Stephen and Elizabeth were intended by the said Runyon Barkelew, deceased, and received by them as advancements. The bill then states certain facts as evidence that advancement was intended,
    Vincent Barkelew put in an answer to the bill. He admits the facts stated in the bill, except as follows: as to the allegation, in the bill, that Runyon Barkelew, deceased, in his lifetime, made a statement in writing of the amounts at which he valued the real estate given by way of advancement to his sons Abraham and Stephen, and which he, the said Runyon, intended should be deducted from their respective shares of his real estate, as in the bill is charged, this defendant says he is entirely ignorant of any such statement having been made, aud that he neither admits nor denies it. That, as to the house and lot in the bill mentioned as being in the occupancy of this defendant, he says that the said premises consist of a lot of land, with a dwelling-house and out-buildings thereon, and a wharf; and were purchased by the said Runyon Barkelew, deceased, from one Dunham, about the year 181 l,for $2250. That the said premises were, when so purchased, and had been for some time before, iu the occupancy of this defendant, who had then just come of age and commenced business for himself. That the said Runyon Barkelew, deceased, having it then iu contemplation to make advancements out of his real estate to this defendant as well as to his two other sons, Abraham and Stephen, consulted with this defendant as to the purchase of-the said property for this ■defendant; and that, it being deemed suitable for this defendant, the said Runyon Barkelew purchased it, and gave it to this defendant. That the said gift was absolute, and was intended by the said Runyon Barkelew as an advancement out of his real estate to this defendant, it being at the time deemed equivalent in value to what would be the equal share of this defendant in the real estate of the said Runyon at his decease. That at the time the said purchase was made, the said Runyon proposed to this defendant that the deed for the said property should be made to this defendant; but that, having just entered into mercantile business, he declined taking the deed in his own name, and suffered it to be made to the said Runyon, his father. That from that time to the present, a period of more than thirty years, the said property has always been possessed by this defendant, and claimed and considered as his own ; and that the said Runyon, also, in his lifetime, always treated and considered it as belonging to this defendant. That when the said property was so purchased from Dunham, the whole of the purchase money was not paid; but that a mortgage on the property was given to Dun-ham for a part thereof. That this mortgage remained unpaid several years, during which time this defendant paid to Dunham the interest theteon; and that when the mortgage was finally paid off, he, this defendant, paid a portion of it, though he is unable to specify precisely the amount he paid, having never kept any account thereof. That he made large and expensive improvements on the property, at his own expense, and, in the year 1816, built a wharf on the premises, 300 feet long and eight feet high, at a cost of $2000. That in 1822 he expended $1100 in repairing the said wharf, and that, in 1840, he expended the further sum of $200 in repairing the same. That in 1828 and 1829, he repaired the dwelling-house and built a large addition thereto, consisting of two rooms below, four rooms above and a cellar ; and that he also built a wagon-house, smokehouse and lime-house thereon, the whole of which cost $1000. That the said improvements have rendered the said properly of double the value it was when it was purchased, and were made in reliance on the gift of the property, so made to him. That the value of the said property when purchased does not exceed his equal share of the real estate of the said Runyon, on a division of the said real estate including the said property; and that tlie said property could not be divided without great detriment to the value thereof. He claims to hold the said property against any claim of the other heirs, but, if he has not a right so to hold it, he submits that in any partition of the real estate of said Runyon Barkelew, deceased, the said premises should be assigned to him; he submitting that if the original value of die premises, excluding the improvements, exceeds his equal share, he will pay the excess.
    The joint and several answer of the other defendants, except Stephen, was also put in. They admit the conveyance, in the year 1810, by Runyon Barkelew, deceased, to his son Abraham, and Jane, the wife of Abraham, as joint tenants, in fee, of the .Dunham farm, for the consideration of love and affection and of $1. They say they neither admit nor deny that the said Runyon, deceased, advanced to his son Stephen the lands in that respect mentioned in the bill, they knowing nothing on the subject, of their own knowledge; and they leave the complainants to prove, &o. That they neither admit nor deny the pretended advancement alleged to have been made to Elizabeth Lewis, or for her use, but leave the complainants to prove the same. But they deny that the conveyances and sale by Runyon Barkelew, deceased, to his sou Abraham, were intended by said Runyon as an advancement out of his real estate to his son Abraham, or were received by Abraham as such advancement.
    The defendant, Jane Barkelew, widow of Abraham, answering for herself, says that, being one of the grantees of the said 100 acre tract conveyed to Abraham and her jointly, she was consulted in all matters touching the said conveyance, and took a principal part in the matter ; and that she never heard it mentioned by any one, at the time, that the said conveyance was to be considered as an advancement to Abraham, and for which he was to account after the death of his father. That if there had been any such understanding, the said conveyance would never have buen made or received. That before, and at the time of the said conveyance, her said husband was desirous of removing from the village of Washington, where his said father resided, and had purchased property in New Brunswick, with a view of removing thither, and had made arrangements to do so. That-said Runyon urged and insisted that Abraham should not leave him, but should remain with or near him to assist him in his affairs, and voluntarily offered and proposed to give and convey the said lands to Abraham, if he would consent to live thereon, and assist him in the business and affairs of the said Runyon. That she objected to receiving the said deed and the lands thereby conveyed. That the said Runyon expressly told her, that if she and her said husband would consent to take the said lands and reside upon them, Abraham’s share in the remainder of his estate should not be any the less in consequence of the said conveyance. That the said proposition and request of Runyon were yielded to with reluctance at the time, because her said husband and she were very anxious to go elsewhere, and because the said lands were, at the time, very poor and unproductive, and scarcely worth cultivating. That when the conveyance was made, it was absolute; the consideration money was paid, and not a word was said, by any one, about its being an advancement. That, sometime previous to the death of the said Runyon, the complainant, Samuel Gordon, as these defendants understood, caused it to be told in the neighborhood that the said conveyance was intended as an advancement, and that she, the said Jane, in the presence of the defendants, Mary Barnes, Abraham Barkelew, and William Barkelew, inquired of the said Runyon if such story was true, that the said conveyance was intended as an advancement, to be afterwards accounted for by the said Abraham; and that the said Runyon then and there declared that the said representations were not true; that the said conveyance was not intended as an advancement to be afterwards accounted for; and that they need not give themselves any further trouble about the matter. And this defendant denies, so far as she knows or believes, that the said Runyon, in his lifetime, ever caused or directed the complainant, Samuel Gordon, to make a statement in writing of tlu> amounts at which he, Runyon, valued the lands alleged to have been advanced, as aforesaid, by way of manifesting his intention in regard to the said conveyance. She denies that he ever kept or made any record or memorandum touching the said conveyance to Abraham; and charges that if any such paper was found among his papers, it was the unauthorized device of the said Samuel Gordon or of some other person or persons ; and she denies, as far as she knows or believes, that Abraham was present at the time of making such written stateme.it and assented thereto and acknowledged the same to be correo*. She insists that the representatives of Abraham are entitled to their full share of the real estate of which the said Runyon died seized, without any regard to the said conveyance made to Abraham ; which, she submits, was made for the considerations aforesaid, and not as ati advancement to be accounted for by Abraham or his representatives.
    The defendant Stephen Barkelew did not answer the bill, and a decree pro oonfesso was taken against him.
    A deed from Runyon Barkelew and his wife to their son Abraham and Jane his wife, dated June 18th, 1810, of a farm of 100 acres, for the consideration of §1, and natural love and affection, io have and to hold to the said Abraham, his heirs and assigns forever, to the only proper use, benefit and behoof of him, the said Abraham, and Jane his wife, their heirs and assigns forever, was exhibited on the part of the complainants.
    It was proved that Abraham took possession of this farm.
    Henry Gordon, a witness called for the complainants, testifies, among other things, that about two years before Runyon Barkelew’s death, he saw in said Barkelew’s hand the paper marked Exhibit B on the part of the complainants. That said Barkelew, his sight being then defective, handed certain papers to the witness to read and state the contents (hereof to him, the said Barkelew. That among the said papers was the said Exhibit B, or one very similar to it.
    On his cross-examination, he says he has no doubt that the paper marked Exhibit B is the paper he saw in said Barkelew’s possession.
    The witness says he is acquainted with the property charged in Exhibit B to "Vincent, a son of Runyon Barkelew. Tie further says that, independent of the paper Exhibit B, he should have recollected that Vincent, Abraham and Stephen were charged with property on that paper.
    Henry Shults, sworn for the complainants, says he was one of the administrators of the personal estate of Runyon Barkelew,. deceased ; that he saw Exhibit B when they were taking the inventory. They found it among the papers of the said Runyon, there described. Exhibit B is a memorandum, dated October 11th, 1836, in which Vincent, Abraham and Stephen are charged as Dr. to the estate of Runyon Barkelew; Vincent Barkelew to the house and lot in the village of Washington which he “ now occupies”.......................................................... $2250 Henry Obert’s lot................................................ 1005 Abram Barkelew, to farm.................................. 1500 Stephen Barkelew, to lot of land of Robinson Thomas, $450; one lot of Forman Throckmorton, $400; cash, $300.
    No evidence was produced on the part of the representatives of Abraham, in support of the allegations of their answer, on which the said answer claims that the farm deeded to Abraham and his wife should not be considered an advancement.
    . As to the house and lot in Vincent’s possession, which the bill includes among the property a partition of which is sought, the testimony shows that Vincent has been in possession of it about 35 years, and that he expended large sums of money on it, in the lifetime and with the knowledge of Runyon Barkelew, deceased, in building out-houses on it and an addition to the dwelling-house, and in building a wharf on it at great expense; but that his father never made a deed to him for it.
    As to the two lots stated in the bill to have been advanced to Stephen, the testimony supports the charges in the bill.
    The cause was heard on the pleadings and proofs.
    
      Henry V. Speer, for the complainants.
    
      John Van Dyke, for the representatives of the deceased son Abraham.
    Cases cited for the complainants: Roberts on Fraud. Convey
      
      ances 74, 75, 373; Ib. 40, note 3 ; Stark. Ev. 1004; 16 John. Rep. 47 ; 7 Ves., Jr., 519 ; 1 Penn. Rep. 291; 3 Paige 546.
   The Chancellor.

There is nothing in the proofs in the cause to overcome the evidence furnished by the deed from Runyon Barkelew, since deceased, to his son Abraham, since deceased, and the wife of Abraham, that the farm conveyed by that deed was an advancement.

A deed in the form of bargain and sale, from a father, in consideration of $1, and of love and affection, to one of his sons, his heirs and assigns forever, to have and to hold to the use and benefit of the said son and his wife, and their heirs and assigns forever, is, unless a different intention can be made to appear, an advancement to the son. 2 Atk. 635.

As to Stephen’s right in the descended estate, his father put him in possession of lands, which he occupied twenty years and then sold, and the father made the deed to the purchaser and Stephen received the consideration money. I think this, also, must be held to have been an advancement to Stephen.

As to Vincent, the father put him in possession of a house and lot, thirty-five years ago, which ho has occupied ever since, and on which, with the knowledge of his father, he has made large improvements at his own expense. Whether this is to be considered an advancement or not may not be material. It will not be materia] if the value of the house and lot, without the improvements, be not equal to the value of what would be the share of Vincent in the whole real estate to be divided, including the house and lot, for the court, under the circumstances, would direct the house and lot to be assigned to Vincent, at its value without the improvements. If its value without the improvements be greater than his share as aforesaid, then it will be necessary to determine whether it was an advancement. If it was, then he could not be compelled to pay anything to the other heirs on account of it. But if it was not, the court would direct the house and lot to be assigned to him on his paying the excess of its value over a share, such excess to be so divided among the heirs as to equalize their shares.

A partition will be decreed, and to that end, and before directing a commission to make the partition, the proper reference will be ordered.

Order accordingly.  