John M. Towles, Administrator, &c., vs. Rebecca Roundtree et al., 10 Fla. 299

DuPONT, C. J., delivered the opinion of the Court. This is a hill in Equity filed by an administrator, and asking for the instruction of the Court to guide him in the administration of the estate. The point upon which the instruction is asked, grows out of the following state of facts: Uriah ICemp was the husband of Mary Ellen, a daughter of Francis Roundtree, the intestate. He was engaged in the’ mercantile business, but, failing therein, his father-in-law was compelled to pay a large sum of money for him, as his surety.

"Whereupon, he executed and delivered to his said-father-in-law. the following instrument of writing, to wit: “ $3,068 34. — Received, this first day of March, eighteen hundred and forty-one, of Francis Roundtree, the sum of three thousand and sixty-eight dollars and thirty-four cents, as being in full of all demands against the said Roundtree, against his estate, and it being my proportionable part of the same. I do hereby relinquish all my right, title, interest and claim to any further demands against the aforesaid Francis Roundtree, his heirs and assigns, executors and administrators.

In witness whereof, I have hereunto set my hand on the day and year above written.” This transaction took place in the State of Georgia, and a year or two after, to wit: in the*year 1844, all of the parties removed to this State and became citizens thereof. Mary Ellen, the wife of Uriah Kemp, died, leaving three children of this marriage, and her father, Francis Roundtree, surviving .her. Erancis Roundtree afterwards, to witi in the year 1859, also died, intestate — leaving, surviving him, two children of his own, and three grand-children, being the offspring of his deceased "daughter, Mary Ellen Kemp.

The contest in this suit is between the children and the grandchildren, as the representatives of their deceased mother, in the distribution of the estate. Upon this state of facts, it is insisted, on behalf of the children, that. the paper recited in the foregoing statement operates as a total extinguishment of the right of the grandchildren to come into the distribution, as the representatives of their mother.

That the paper, before referred to, was an absolute release of her expectancy from her father’s estate; and having been executed by her husband for a good and valuable consideration, it operated to extinguish any right which she could ever have as a distributee of her father’s estate, and consequently presented an absolute bar to any claim of the children, as hey representatives.

That. if the Court should be of opinion that this paper was not a release, that then it roust be taken as good evidence of an advancement pro tanto, which must be brought into hotch-pot, with interest accruing thereon from the date thereof. No authority was cited to establish this paper as a release, and we are very confident that the position assumed is as unsustained by precedent as by any sound logical deduction. To establish this paper as a release, and to give it the operation contended for, would present an anomaly in legal instruments.

To presume that a man would consent to pay to another a valuable consideration for the release of aright wholly dependent upon his simple volition, and that., too, only to an expectancy, is not only contrary to'sound reason, but is opposed to any \of the motives which are found to govern and control human action. Such, then, cannot be the operative effect of this instrument.

Whether it shall be taken as a matter of evidence, going to establish an advancement made by the grand-father to the mother of the grandchildren, is a question of a different character, the solution of which may be tested by sound reason and controlling authority. ' To negative the idea of advancement, it was assumed on behalf of the grand-children, in the first place, that the benefit accruing from the transaction having been personal to the husband, did not affect the interest of the wife.

That, to constitute a good advancement to the wife, the money must be paid into her own hands, and that the husband had no right to receipt for it. That even admitting the right of the linsband under the principles of the • common law, yet inasmuch as all the parties were citizens of this State, where the statute secures to the wife the title to her own property, that right would not here exist. Both of these points came under discussion before this Court, in the case of Linsay and wife vs. Platt, 9 Fla. R., 150 and were ably and elaborately argued by the counsel on both sides.

The Court, after very patient investigation and mature deliberation, adjudicated ■ the points ; and the decision, in that case, is now to be taken as the settled law in this State. The Court there determined that: . “ 1. An advancement to a husband, by his father-in-law, is an advancement to the wife.” “ 2.

An agreement between the father-in-law and the husband, that the former would never enforce tide payment of a debt due to him from the latter, but that the same should be considered an advancement to the wife, said agreement having been complied with by the father-in-laW during his life, makes the amount of said debt an advancement, which ought to be brought into hoteh-'potP ■ Though it does not appear in the head-notes, yet it will be found by reference to the opinion, that the point made in this case with reference to the operative effect of the statute, came up for consideration in that case and was expressly adjudicated by the Court.

The Judge, in the opinion delivered in that case, remarks: “Nor does our ‘married woman’s act,’ of 1845, enter into the consideration of this question further than this — that the husband, the instant his father-in-law entered into this arrangement with him, became indebted to his wife in the amount of the sum agreed upon as an advancement. Even if the money had been taken from the pocket of the father and handed immediately to the daughter, the husband would have been entitled, to the immediate possession of it, and the wife could not have sued him for even so much as the interest of it.

It mattered not, therefore, whether the money intended as an advancement was left in the hands of the husband or the wife.” But it is further insisted that the ease under consideration is distinguishable from the case of Linsay and wife vs. Platt, in. this particular, to wit: that in that case the wife survived the father, while, in this, her death occurred some years anterior to his.

It seems to he assumed by one of tbe counsel,' wbo represents tbe claim of tbe grand-children, and whose written argument-is now before us,-that the heritable capacity of tbe grand-children and their right to come in as distributees of their grand-father’s estate, was totally independent. of their mother, and that no act of hers, or affecting her interest in the estate,' can operate to affect their interest. This position is not in ac'cord with, or supported by any canon of the common law on tbe subject of inheritance.

But for the right of the mother, they would be as much strangers, with respect to the estate of the grand-father, as though they were not of his blood. The grand-children take by succession, and in their representative capacity, and have no original or inherent heritable capacity.

The conclusion to be deduced from these views is, 1st, that the paper signed by Uriah Kemp and filed as an exhibit in tbe cause, did not operate as a release, to extinguish his wife’s right to become a distributee of ber father’s estate after his death; 2d, that it does furnish evidence of an advancement made to the wife, and so far did affect the value of her interest as a distributee, and, through ber, tbe inter, est of her children; 3d, that the statute of this State, which secures to the wife a separate interest in her own property, does- not affect the interest involved in this suit.

But one,-other question remains to be disposed of, and that is as to the right to have' the amount of the advancement charged with interest. The counsel, in asserting this claim to interest, furnished the Court with no authority to tbe point, and we are rather of, opinion that the whole current of authority will be found to- be the other way. We doubt not that the text-books furnish ample light on this point, but they have not been furnished to the Court, and are -not now accessable to us.

In the case of “ Miller’s Appeal,” 31 Penn; State Rep., 337, the Court refused'the claim for interest, holding an advancement to be a pure gift, and not chargeable with interest. If the law were as is contended for by the counsel for the appellant, an advancement to a child word#cease to be a benefit, and, in the majority of cases, would prove only a grievous burden.. It would be the conversion of a gift, which the term itself implies, into a simple loan, purchased for a valuable consideration — the payment of interest.

The purpose of .an advancement is to "furnish the children, as they may become of age, with a capital with which to commence business when they leave the paternal roof and set up for themselves. To burden it' with the payment of interest would leave the child under no special obligation to the parent, since ho might readily obtain the same accommodation from a mere stranger.

"We have deemed it unnecessary to comment upon the cases cited at the hearing, for the reason that all the points legitimately arising in the case had already received the' solemn adjudication of this Court, in the consideration of the case of Linsay and wife vs.

Platt, before referred to; Having maturely considered all the points presented by the record, it is ordered, adjudged and decreed that the final decree heretofore pronounced by the Chancellor in this cause be reversed and set aside, and that the cause be remanded to the Court below, with directions to take such other and further proceedings therein as may be conformable tq this opinion.