thus the emancipation of slaves, given to a child as an advancement before the war between the States, did not relieve him from accounting for their value.50

If legatees are chargeable with advancements evidenced by promissory notes or receipts which are uncollectible from them, they can not require the notes and receipts to be treated as part of the assets of the estate for the purpose of ascertaining their shares.51

Where children are to be charged with advancements, interest runs thereon from the date of filing the executor's account up to the time of distribution.52 Where, however, a testator gave his residuary estate to his widow. for life, with remainder to his children, with the proviso in common form for bringing into hotchpot all advancements made to them by him, interest was computed from the death of the widow, and neither from the date of the respective advances, nor from the death of the testator. 53

§ 739. Statutory Regulations as to Gifts and Advancements. Advancements or advanced payments and gifts have been regulated by statute in some jurisdictions. For example, in California, "advancements or gifts are not to be taken as ademptions of general legacies, unless such intention is expressed by the testator in writing.54 In

50 Fennell v. Henry, 70 Ala. 484, 45 Am. Rep. 88; Ventress V. Brown, 34 La. Ann. 448. See, however, Hughey v. Eichelberger, 11 S. C. 36; Wilson v. Kelly, 21 S. C. 535.

51 Hill v. Bloom, 41 N. J. 276, 7 Atl. 438.

52 Ford's Estate, 11 Phila. (Pa.) 97. See, also, Barrett v. Morriss, 33 Gratt. 273.

From the date of the parent's death. Kyle v. Conrad, 25 W. Va. 760.

53 Rees v. George, L. R. 17 Ch. Div. 701.

54 Cal. Civ. Code, § 1351.

The same provisions have been passed in Dakota, Montana and Utah.-Stimson's Am. Stat. Law.

§ 2811.

Kentucky it is provided that a provision for or advancement to any person shall be deemed a satisfaction in whole or in part of a devise or bequest to such person contained in a previous will, if it would be so deemed in case the devisee or legatee were the child of the testator; and whether he is a child or not, it shall be deemed so in all cases in which it shall appear from parol or other evidence to have been so intended.55 In construing this Kentucky statute it is held the one claiming an advancement to be in satisfaction of a legacy or devise has the burden of proving that such was the testator's intention, whether the beneficiary is or is not a child of the testator. If the devisee has signed a writing to the effect that a devise to him has been satisfied by an advanced payment, a prima facie case is established, and the burden. is then on the devisee to show that the writing was obtained by mistake or fraud.50

§ 740. Evidence of Testator's Intention: Statutory Regulations and Provisions of the Will.

In considering the question as to what evidence is admissible to establish or disprove that a gift by a testator to one to whom he stands in loco parentis is in satisfaction of a previous legacy, resort must first be had to the statute, if any, on the subject. For instance, if the statute provides that no gift or advancement shall cause the ademption of a legacy unless the testator express

55 Kentucky Stats., (1915) § 4840. The intention of the statute was to prevent a double portion. Louisville Trust Co. v. Southern Baptist Theological Seminary, 148 Ky. 711, 147 S. W. 431.

One who claims an advancement

to be in satisfaction of a legacy must allege in his pleadings that such was the intention of the testator.-Swinebroad v. Bright, 110 Ky. 616, 62 S. W. 484.

56 Smith v. Cox's Committee, 156 Ky. 118, 160 S. W. 786.

such intention in writing, parol evidence would be inadmissible. Or parol evidence may be proper under the particular legislative regulation. Decisions should be considered in the light of such enactments.57

Where the will of the testator clearly expresses his intention, its provisions can not be varied or explained by parol evidence, but if the intention is not clear, extrinsic evidence may be received. However, if the language is clear and unambiguous, the intent of the testator must be gathered from the provisions of the will.58

§ 741. The Same Subject: Parol Declarations and Other Evidence.

To prove the ademption of a legacy by advancement it must appear, first, that the legatee received the money from the testator; and second, that the money was advanced as a portion with the intention of satisfying the legacy.59 To prove the mere fact of the passing over of the money from the parent to the child, evidence of the parol declarations of the testator is not admissible, and such independent fact must be proved by other testimony.60 Also charges in books, as evidence of the passing over of the money, although admissible, are not entitled to much weight."1

The fact of the money having passed from the parent 37 S. W. 901; Whitsett v. Brown, 56 N. C. 297.

57 See

§ 739.

statutory regulations,

58 Fowkes v. Pascoe, L. R. 10 Ch. App. 343; Smith v. Conder, L. R. 9 Ch. D. 170; Chapman v. Allen, 56 Conn. 152, 14 Atl. 780; Richardson v. Eveland, 126 Ill. 37, 1 L. R. A. 203, 18 N. E. 308; Robbins v. Swain, 7 Ind. App. 486, 34 N. E. 670; Garth v. Garth, (Mo.)

59 Van Houten v. Post, 33 N. J. Eq. 344, 346.

60 Fawkner v. Watts, 1 Atk. 406, 407; Batton v. Allen, 5 N. J. Eq. (1 Halsted Ch.) 99, 43 Am. Dec. 630; Van Houten v. Post, 33 N. J. Eq. 344, 346.

61 Van Houten v. Post, 33 N. J. Eq. 344, 346.

to the child, after the execution of the will, being proved, the next question is as to the admissibility of evidence to show the intention, whether it was by way of gift, independent of the provisions of the will, or a loan, or payment of an obligation, or whether it was intended as a portion in satisfaction of the legacy. In the absence of any statute determining by what evidence an advancement made to a child shall be proven, contemporaneous memoranda, charges in the form of accounts, and parol evidence are admissible to show the intention with which the payment was made and received.62 Although a payment of money or conveyance of property to a child is presumed to be by way of advancement, this presumption is slight, and to overcome it, evidence of parol declara

62 Biggleston v. Grubb, 2 Atk. 48; Phillips v. Phillips, 34 Beav. 19; Kirk v. Eddowes, 3 Hare 509; Thellusson v. Woodford, 4 Madd. 420; Miller v. Payne, 28 App. D. C. 396; May v. May, 28 Ala. 141; Davis v. Whittaker, 38 Ark. 435; Johnson v. Belden, 20 Conn. 322; Rogers v. French, 19 Ga. 316; Richardson v. Eveland, 126 Ill. 37, 1 L. R. A. 203, 18 N. E. 308; Daugherty v. Rogers, 119 Ind. 254, 3 L. R. A. 847, 20 N. E. 779; Timberlake v. Paris, 5 Dana (Ky.) 346; Wallace v. DuBois, 65 Md. 153, 4 Atl. 402; Richards v. Humphreys, 15 Pick. (32 Mass.) 133; Nelson v. Nelson, 90 Mo. 460, 463, 2 S. W. 413; Van Houten v. Post, 33 N. J. Eq. 344; Grogan v. Ashe, 156 N. C. 286, 72 S. E. 372; Zeiter v. Zeiter, 4 Watts (Pa.) 212, 28 Am. Dec. 698.

A testator's certificate that he

has advanced a certain sum to an heir is admissible in evidence, but is not conclusive proof of its recitals. In re McClintock's Appeal, 58 Mich. 152, 24 N. W. 549.

Where a father advanced various sums to several children, taking receipts "as part of my apportionment of his estate,” but in his will directed his estate to be sold and divided equally among his children, making no provision with respect to the advancements, it was ruled that the children should take equal shares.-Camp v. Camp, 18 Hun (N. Y.) 217.

In a case in which a father, being surety for his son, and paying a part of the debt, declared it to be by way of advancement, and took the notes and placed them in a package of receipts from other children to whom he had made advancements, writing

tions of the testator is admissible to show that he did not intend the money as a portion in satisfaction of the legacy; and, in reply thereto, his parol declarations that he did so intend may be shown, to ascertain if the presumption be well or ill founded.63

The declarations of a testator, when admitted in evidence to overcome or sustain the presumption, should not be vague and uncertain, but should have been made with some particularity, so that they could be understood by the witnesses who heard them; otherwise they are entitled to but little weight."

64

A testator may indicate by reference in his will to account books and ledgers, what he intends shall be considered as advancements.65 But in the absence of any reference to books in the will or other evidence pointing to them, entries therein of advancements to a child are not sufficient to show an intention that deduction

also, Darden v. Harrill, 10 Lea (78 Tenn.) 421.

Where a note twenty-four years old was found among the testator's papers, the presumption of payment prevented it being treated as an advancement.-White v. Moore, 23 S. C. 456.

63 Rosewell v. Bennett, 3 Atk. 77; Kirk v. Eddowes, 3 Hare 509; Van Houten v. Post, 33 N. J. Eq. 344, 347.

64 Van Houten v. Post, 33 N. J. Eq. 344, 347.

65 Limpus v. Arnold, 13 Q. B. Div. 246; s. c., 15 Q. B. Div. 300; In re Robert, 4 Demarest (N. Y.) 185; Robert v. Corning, 23 Hun (N. Y.) 299; Lawrence v. Lawrence, 4 Redf. (N. Y.) 278.