Shaw v. Kent
| Decision Date | 23 November 1858 |
| Parties | Shaw, Administrator, v. Kent |
| Court | Indiana Supreme Court |
From the Tippecanoe Court of Common Pleas.
The judgment is reversed with costs. Cause remanded for a new trial.
E. H Brackett, for appellant.
S. A Huff and E. A. Greenlee, for appellee.
Shaw, the administrator [of James Kent, deceased], filed his account for final settlement of the estate, showing a balance in his hands for distribution among the heirs of the decedent, a part of which had been paid to Susannah Price and Rachel Prater, two of the heirs, and claiming, in right of his wife, another heir, a part of the sum in his hands. James Kent, Jun., the appellee, and remaining heir, appeared and contested the account, and set up a claim to the entire amount in the hands of the administrator, on the ground that the other heirs had been advanced, in the lifetime of the deceased, to a greater amount than there was left for distribution. The matter was referred to a referee, or master commissioner, as he is styled in the record, who reported that such advancements had been made, and that the appellee was entitled to the sum in the hands of the administrator; and judgment was entered accordingly.
It appears by a bill of exceptions, that the appellant demanded to have the question as to the advancements alleged, tried by a jury, but the Court overruled the application, on the ground that he had no right to have the same tried by a jury.
The alleged advancements, consisted of conveyances of real estate. These conveyances were made under the statute of 1843. It is insisted that the statute of 1843 makes it an advancement for a parent to bestow property upon a child, and that, therefore, (the conveyances not being denied,) the question presented was a mere question of law. We think, however, that the conveyance of land by a parent to a child would not operate as an advancement, unless it was so intended. What would be the presumption in such case, it is not necessary for us to determine. The statute referred to, so far as it is necessary to allude to it in order to a correct understanding of this question, is as follows:
"Any estate, real or personal, that may have been given by any deceased person in his lifetime, as an advancement to any child, &c., shall be taken by such child, &c., towards his share of the estate of the deceased." R. S. 1843, p. 439, § 134.
This section clearly contemplates that the property must be given as an advancement, that is intended as such, in order to charge him with it in the distribution of the estate.
"If any child, &c., shall have been advanced by the deceased, by settlement or portion of real or personal estate, the value thereof shall be reckoned," &c. Id. p. 555, § 372.
This section, we think, does not, in this respect, at all enlarge or limit the other. To constitute an advancement to a child "by settlement or portion of real or personal estate," such settlement or portion must have been so intended. If the giving of land to a child is prima facie evidence of an intent to advance him, still the door is open to rebut such evidence or presumption, and show that the intention was otherwise. This would involve questions of fact proper to be tried by a jury.
In addition to the constitutional provision on the subject of the right of trial by jury, it is provided by the statute for the settlement of decedents' estates, &c., that "trials by jury shall be allowed, at the request of any party, in all cases where there is an issue of fact." 2 R. S, p. 291, § 188.
We are of opinion that the appellant was entitled to have the matter tried by a jury, unless the record shows that he, in some way, waived such right. It is suggested...
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