SAMUEL GORDON and wife et al. v. STEPHEN BARKELEW et al.

A deed in the form of bargain and sale, in consideration of $1 and of love and affection, 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.

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 and the son received the consideration money.

Held, to be an advancement.

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 knowkedge of the fa ther, 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 off, in the division, to the son, at its value without the improve. ments.

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.

A child who has received an advancement cannot be compelled to pay any thing 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 wife, John D. Servis 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 Bar kelew, 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 and 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 monies which had come to him through Jane, his wife, and she

being unwilling that said monies 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 them; 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 Messler, for $870, which he received to his own use, his father, at his request making a deed therefor to the purchaser. That the said Runyon Barkelew, deceased, also, in 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 life time, 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 es-... tate, as in the bill is charged, this defendant says, he is entirely ignorant of any such statement having been made, and 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 1811, for $2250. That the said premises were, when so purchased, and had been for some time before, in 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 in 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 life time, 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 Dunham for a part thereof. That this mortgage remained unpaid several years, during which time this defendant paid to Dunham the interest thereon; 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, smoke house and lime house thereon; the whole of which cost $1000. That the said improvements have rendered the said property 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 the 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 Barkelow, deceased, the said premises should be assigned to him; he submitting, that if the original value of the 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 &c. 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 son 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 been 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 And this defendant denies, so far as she knows or believes, that the said Runyon, in his life time, ever caused or directed the complainant Samuel Gordon to make a statement in writing of the amounts at which he, Kunyon, valued the lands

matter.