Show A LE LEGAL I 1 igal OPINION la in f ahe he macii much hark mark dellmin estate im joni a 3 CU CUT TOUT OCT vm DECREE after iner i a SOB goo hu his a gift ia in ufa lien of f bis his Inter cut la to bis his fathers estate he cannot Ii la herit berit the ettace of mark bellman baa has been in dispute for some time past A petition for decree of distribution has been filed and four of the children barege have petitioned that john M 31 bell man be cut out of the distribution on the ground round that be received his portion from the deceased before Us his mart mark bellmanh Bell Sell mane mano death A bearing hearing was as bad ou on this petition and yesterday judge bishop filed the following opinion which it will be I 1 found ia Is of great interest to the people of this county it is therefore given in full ful in in the probate court of weber co county u a utah territory in the matter of the estate of mark bellman sellman deceased caroline M 8 enabling embling earne a t A seliman oscar bellman olive oliv e sellman Sell maa plaintiffs ve vs john R M sellman bellman d dependant delen fen dant hearing on petition tor for distribution the petition praying for a decree beof of di distribution aution herein filed alleges that mark sellman sell man died intestate on the day of november A D 1888 leaving as his only dietra at law thomas A bellman car caroline 0 line 31 S embling earnest A Sell sellman mau oacar osca r sellman sollman and olive bellman sellman sons sone an and d daughter of said intestate i that thomas A bellman sellman aforesaid died subsequent to the death of mark bellman sellman leaving an estate in which bis his other othe brothers and sisters who were the heirs of mark bellman sellman deceased would be entitled to equal participation I 1 and after partial admin adain F idt t ration thereon the same was br this court transferred to the administratrix and became a part of the estate of mark deceased the petition fai further rth 0 r alleges that the plaintiffs an and d defendant efen dant here herein 1 n are entitled to participate 4 ia n the residue of mark Bell mans estate estat e in equal chares T the plaintiffs plaint iffa herein file written jobje objections chions to the petition for distribution in which it is alleged that jno M sellman did prior to the death of said intestate obtain and acquire from eaid said intestate bis his father the title to and p possession os session of certain real eats estate and has ever since held possessed be aa occupied and used the same to his own exclusive benefit that eaid said land was conveyed to him by said intestate pursuant to an express agreement bement that the raid jno bellman sellman was to take the eaid said land in foil fall satisfaction of all rights interests and claims of to or against the property and estate of the said mark bellman sellman after bis his death that the conveyance of said land was for that purpose was BO so intended by said intestate and was BO so accepted by the said jno 11 bellman sellman that the said jno M bellman sellman paid no valuable consideration except the sum sam of sixty dollars being a part only of the real value thereof and for the other part he promised bis his father the intestate herein and his brot brothers herg and sisters aia tere the plaint plaintiffs iffa herein that be he would never claim any other othe or further interest in bis his fathers estate the deed doea of conveyance ol 01 said land is the ordinary form of warranty deed the consideration of which is one hundred and fifty dollars and contains no words to indicate that the game same was intended as an advancement nor that it was made and accepted cepter as in full fall satisfaction oada of defendants fend fond ants interest or share in bis his fathers estate it is also conceded that the intestate left no writing in which it was charged as an advancement nor that it was ever acknowledged in la writing as such by the eaid said john M sellman to the allegations contained in plain plaintiffs written objection the defendant files a general denial and maintains that inasmuch as there Is to no mention in the deed of conveyance that there is no charge in writing by the intestate or acknowledgment t in writing by the defendant that the same was given as an advancement van cement that parol testimony is inadmissible and incompetent to establish tab liall the same under action F 2752 of the compiled laws of utah 1838 1888 which provides as follows 1 all gifts and grants are made as advancements if expressed in the gift or grant to be so made or if ebb charged a ed in writing by the decedent as an s advancement rIvan cement or acknowledged I 1 in n writing as such by the child or ob other or successor or heir considering the conveyance in this case solely as a question of advancement van cement there can call be no doubt that we above statute would operate to exclude oral test testimony to prove or establish it and tb therefore fo the first question we aro are called upon to determine is whether under the allegations contained in plaintiffs written objections the case comes within the purview of what the law denominates nominates de advancement we think not advancements are described in the law as gifts by a parent in pr pres enli of a portion or all of the share oi of big his child in his estate which would fall to it under the statute of distribution or decent or aa as elvina riving by anticipation during the int estates lifetime of the whole or part of what the child would be entitled to on the donors death sea bee the american law ol 01 0 administration section page 1214 clr and cases cited to constitute the gift an advancement it must be shown to have been the intention of the intestate and must always relate to the final settlement of his estate for the purpose of ascertaining whether it will amount to the whole or only a portion of his heikla share as this tact fact is to never known know a when the gilt gift la Is made it it is intended as an advancement and cannot be known until the final accounting of the administrator is bad had if it the tile kii gift is made and accepted as in full of the childs interest in n lh big fathers estate so as not to be bb dependent upon its ft settlement after the donors death the heir would be es topped from tri bringing nging it into hotchpot pa t and and taking bis his distributive chare shale that is if the rift gift la Is intended by the father as being in full fall of all present and future interest of the heir in his estate and is so understood and a accepted e by the heir then it could not be considered as an advancement and would not como come within the purview of the section of the statute supra which requires written evidence to establish it the well settled rule would seem to bo be that an heir may release bis his expectancy in his fathers estate in consideration of ap a present grant and such agreement will be enforced BO so that be he cannot bring what be he baa has received into hotchpot and get more in the distribution the american law of administration ad vol page 1220 kershaw va d kerhan w ills greene vs II Il athaway 30 36 N J eq dewitt vs brand 10 all H R brand vs dewitt 14 all ALI K R quarles vs quarles 4 mase clavens vs thompson 26 N J eq nesmith vs dickamore Dic smore amore 17 N 11 ra simpson vs simpson III holding as we do that the transaction in this cage case between father and son does not come within the definition t of an advancement BO so as to bar 1 the defendant from participation la in the distribution of the mesidas of aid said estate 03 tte let ug us next determine wha what effect exact in law will be given to the alleged agreement between them as affecting the rights of efthia this defendant Plaint plaintiffs iffa allege and have quite satisfactorily shown by proper evidence den C e the acts facts to be that tb at the defendant fathis lea t and bia his father during daring tho fathers ees life time entered into and I 1 c ally ily executed a contract by which the father agreed to and did then and here there execute to the son this defendant a deed to certain land in consideration whereof he the defendant agreed to and did release all farther further inte interest rost on claim or right in his fathers estate present or prospective prost pec t ive tive the evidence clearly shows that tat the father intended that the con meyance of said land was to be in la full satisfaction of defendants claim and that the son tho the defendant accepted the barno same with that understanding it is conceded that bath both father and eon were competent as parties to a contract and that the transaction is tree free from fraud and dorafs du reps had they not a right to make and execute such a contract and entered into and accepted ita its fruits ought not the defendant be topped stopped from asserting any right in contravention thereof the law says an heir may release his expectancy pec tancy a absolutely in consideration of a present gift and this we think the defendant in this case ease has effectually succeeded in BO so doing the defendant maintained that parol testimony was anad m test ble to show the tra transaction na aati on between mark bellman sellman and nd this defendant on the ground that it seeks to charge or modify the terms of 0 a written instrument to wit the deed ot of conveyance of said land we d do 0 not think the objection well ta taken ken W we a regard the deed as its being incidental ci 1 to the agreement of the parties and waa was the medium tor for carrying into effect said agreement contemporaneous therewith it was the mere passing of title from the father to the eon son as that part of the agreement which devolved upon the father to perform and which acquitted him h lm of ol having done all which was necessary a ear y to be done by him in order to consummate the agreement gre ement with his eon son the mere fact ct that no menti mention on of such an agreement or no words ex pla ining why or tor for what purpose or jobje object t the transfer was made w wa as contained Cont contained lined in the deed conveying asid land will not operate to exal excl exclude ude parol paro testimony to establish a contain iraneous prane ons ous parol agreement between be t wes the game same patties parties such evidence is competent although contracts or other instruments st t a in writing hav have e been executed ak in n pursuance thereof and by way of partial p antii performances storey on con contracts trac ta bee see bar barker k er vs bradley 42 N Y from in intestate testate to this defendant jno M sollman is not attacked neither in its terms bought sought to be modified or changed at most it is but incidental to the question waa was there such a coat contract bract between father and eon son as alleged in plaintiff dl written objections we W e think n ic there was euch such a contract and that in pursuance thereof said conveyance of 0 said a ld land was made that it was ian intended d ed by the father as in ln fall satisfaction of defendants interest in bis his e estate late and that the defendant so understood understood it and accepted the same as in III lion lieu of fall full satisfaction the justice of these conclusions we think cannot be questioned the law presumes that a father intends intend that all his children shall share equal ly with each other enless 81 specially provided otherwise it 1 is A 06 we well it bet set tied find of law to a and ina enforce contracts of this kind between parent and child and is designed in the first place to compe compel I 1 an heir to abide bide by his promises or ag agreements a so as not to pervert the expectation of the father who but for such promise or agreement gres ent would have made a will and in the second place t to 0 secure equality of interest among those who have equality of rights to permit ermit the defendant to participate equally daily with the other heirs in the residuary balance of this estate would be to give him a double portion to their damage and in opposition to the manifest intention of said intestate a ao clearly learly 0 appears from the by evidence id ence in this case the plaintiffs plaintiff tf have not only established the contract between father and son aa as alleged by them by a preponderance preponderance of testimony but the de defendant enfant by failing to go to upon same implication admitted it la in fact be he introduced no evidence whatever to rebut or disprove said allegations under all the acts facts and birc circum am stances of the case we think th the defendant john al sellman has ha S no 6 standing in this court eo 80 far aa as being enfiled to participate in the distribution of the residue of the estate of mark sellman deceased ataide a of the estate of thomaa thomas A bellman sellman heretofore transferred thereto and as to the estate of I 1 th thomas oma a A sellman he is entitled entitled to e equally qually with the plaintiffs PlAintiff id herein and to become the beneficiary of a one fifth interest let a decree be entered in accordance with this opinion |