Dilley v. Love

• Decision Date: 26 March 1884
• Citation: 61 Md. 603
• Parties: BARNEY DILLEY, Benjamin R. Edwards and Margaret Edwards v. ARMIDA E. LOVE and Others. Barney Dilley, as Administrator and Receiver, Etc. v. Same. Armida E. Love and Others v. Barney Dilley and Others.
• Court: Maryland Court of Appeals

61 Md. 603

BARNEY DILLEY, Benjamin R. Edwards and Margaret Edwards v. ARMIDA E. LOVE and Others.

Barney Dilley, as Administrator and Receiver, Etc. v. Same.

Armida E. Love and Others v. Barney Dilley and Others.

Court of Appeals of Maryland

March 26, 1884

The cause was argued before Miller, Stone, Robinson, Irving, and Bryan, JJ.

Richard T. Semmes, and Benjamin A Richmond, for Barney Dilley.

J Frank Seiss, for Lulu L. and Minnie E. Seiss.

William Walsh, for James Athey.

Josiah H. Gordon, for Armida E. Love, and the heirs of J. Frank Dilley.

Miller J., delivered the opinion of the court.

By our laws of inheritance, it is enacted that if any child or children, or their issue shall have received from the intestate any real estate by way of advancement, they may elect to come into partition with the other parceners, on bringing such advancement, or its value, into hotchpot with the estate descended, and shall not be entitled to claim a share by descent without so bringing in the advancement, if there be another child or children unprovided for. Code, Art. 47, sec. 31. And by our Statute of Distributions it is declared that if any child or descendant has been advanced by the intestate by settlement or portion, the same shall be reckoned in the surplus for distribution, and if it be equal or superior to a share, such child or descendant shall be excluded, but maintenance or education, or money given without a view to a portion or settlement in life, shall not be deemed advancement. Code, Art. 93, sec. 126. The manifest design of these provisions is to have justice done to all the children of the intestate, by equalizing, as near as may be, their respective shares in both his real and personal estate. They do not, however, attempt to define what shall constitute an advancement, or to designate the mode in which it shall be made, or the evidence by which it shall be established; but in these respects, the courts, both in this country and in England, have uniformly given a liberal construction to such enactments, in order to enforce the cardinal doctrine which they announce, that in all such cases equality is equity. And while to this end, certain general rules have been adopted, yet all the authorities concede that much must depend upon the circumstances of each case. As said by Baggallay, L. J., in the recent case of Hatfield v. Minet, L. R. 8, Ch. Div. 145: "In all cases in which the question arises whether payments made by a father, who afterwards dies intestate, to or for the benefit of his children, are to be treated as advances, and in that respect to be set-off in making an ultimate division of his property, regard must be had to the surrounding circumstances. The very principle upon which advances are set-off by way of hotchpot, is that of endeavoring, as nearly as possible, to do that which is equal justice among all the children of the dead man." The case now before us is one in which regard to surrounding circumstances, must have a controlling influence, if anything like justice is to be done to the parties interested.

The record shows that Joseph Dilley died on the 16th of March, 1879, at a very advanced age, intestate, and leaving real and personal property, to the value, as we gather from the testimony, of over $100,000. He had five children: two sons, J. Frank, and Barney, and three daughters, Minerva, Margaret and Armida. Of these, Barney, and Margaret, who married Benjamin R. Edwards, are now living. J. Frank died in April, 1879, shortly after his father, leaving a widow and three married daughters. Minerva married Samuel A. Athey, and died intestate in 1851, (her husband having died in 1849,) leaving one son now living, and two daughters, one of whom married Eli N. Love, and is now living, and the other married J. Frank Seiss, and died intestate some years since, and before the death of her grandfather, leaving two infant daughters her sole heirs-at-law. Armida, the other daughter, married Dr. John Everett in May, 1844, and died intestate in October, 1866, leaving her husband surviving her, who died in May, 1870, and eight children: five sons and three daughters, all of whom are now living.

Barney Dilley obtained letters of administration upon his father's personal estate, and was proceeding to settle the same in the Orphans' Court, when, in June, 1880, a bill was filed by Mrs. Love and her husband, praying for a sale of the real estate for the purpose of partition, and that the proceeds of the same, together with the surplus personal estate, after payment of debts, may be distributed under the direction of a court of equity. To this bill, Barney Dilley, in his own right and as administrator of his father, together with all the other heirs-at-law and distributees of the intestate, were made defendants. The principal averments of the bill, are that J. Frank Dilley, Barney Dilley, Mrs. Edwards and her husband, and Mrs. Everett and her husband, received from the intestate in his life-time, large sums of money, and other property by way of advancement upon and out of the proportion of the estate, which would be coming to them, respectively upon the death of their father. The answers deny these averments, and to the issue thus made up the greater part of the large mass of testimony appearing in the record has been directed. The several appeals in the case have been taken by parties dissatisfied therewith, from an order ratifying certain reports and accounts of the auditor, making distribution of the personal estate or a part of it.

Numerous exceptions have been taken to different portions of the evidence, but many of them are of no importance whatever, as the testimony objected to has no material influence in determining any of the disputed questions in the case. There is but one which we deem it necessary to consider, and that relates to the competency of Barney Dilley as a witness. He is a party to the suit as administrator, as well as in his individual capacity, and he has testified upon his own offer. Being thus sued in both capacities, it is insisted that any part of his testimony which goes solely to the question of advancement, and to show what were the intentions of his father at the time he received certain sums of money from him, is admissible under the decision in Graves v. Spedden, 46 Md. 527. But in that case there was no executor or administrator to the suit, and we cannot set aside the express terms of the Evidence Act. The language of the law is explicit that where "an executor or administrator is a party to the suit, either party may be called as a witness by his opponent, but shall not be admitted to testify on his own offer, or upon the call of his co-plaintiff or co-defendant unless he is a nominal party merely," and in the face of these terms we cannot interpolate a qualification which the statute itself does not recognize. The court below was therefore clearly right in sustaining the exceptions taken to the testimony of this witness; but how much of it is thereby excluded? Clearly only those portions excepted to. In Johnson v. Heald, 33 Md. 352, the exception was to the whole testimony of the witness upon the ground of her incompetency to testify at all in the case, but here the exceptions taken by the complainants are confined to certain questions and answers upon the ground that the witness was incompetent to testify as to such matters. This leaves a large portion of his testimony still remaining as evidence in the cause, for we take it to be clear that if an administrator, a party to the suit, sees fit to go upon the stand and testify for himself on his own offer, and in the course of that testimony makes admissions, or gives evidence which the other party is willing to accept, it is competent for such party to waive the statutory exclusion pro tanto, and confine his exceptions to such portions of the testimony as make against him, or as he may deem objectionable. This, as we understand it, was the view of these exceptions taken by the late Judge Pearre in his very able opinion which appears in the record. He evidently so treated the exceptions and considered the large part of the testimony of Barney Dilley, which was not excepted to, as evidence in the cause. In so doing he, in our judgment, committed no error, and his opinion is not therefore open to the criticisms in this particular, made upon it by counsel in argument; and this brings us to the consideration of the two principal questions in the case.

1st. Are the various sums of money, and portions of property received by the several heirs and distributees from, or paid to or for them by, the intestate in his life-time, to be regarded and treated as advancements, or as creating debts, or as mere gratuities or absolute gifts?

2nd. What amount has, in point of fact, been so received by, or paid for and on account of, these several heirs or distributees respectively?

First.--We have found no evidence in the record that the advances conceded or proved to have been made by the intestate, were intended by him as mere gratuities or absolute gifts to his children or grandchildren, and the question therefore is did they constitute as between him and them advancements or debts? By the decision in Groves v Spedden, and the other adjudications of this court there cited, it is settled that in this State, as in England, a gift of money or property by a parent to a child is presumptively an advancement, but that this presumption may be repelled by evidence proper for the purpose; in other words whether such a gift takes the character and legal properties of an advancement, or those of a full and absolute gift without a view to a portion or settlement, depends on the intention of the donor, and that intention may be ascertained by parol...