author: Cox, J.

text:
    (First Circuit — Hamilton Co., O., Circuit Court
    January Term, 1886.)
    Before Judges Cox, Smith and Swing.
    Henry Stagge v. Laura J. Nichols et al.
    A married woman can be compelled to execute a contract in writing, made jointly with her husband, to convey her separate real estate, though the contract is not in the form of a deed, and there is no acknowledgment by her separate and apart from her husband.
    Appeal from the Court of Common Pleas.
   Cox, J.

The petition in this case was filed to compel the specific performance of a contract signed by Laura J. Nichols and her husband, to convey to plaintiff, in consideration of $18,500, a tract of land in Hamilton county, Ohio, which was the separate estate of the wife.

The contract was made on the 20th of August, 1885, and signed by both husband and wife. Five hundred dollars of the consideration was alleged to have been paid to defendants at the'date of the contract. The remainder of the purchase-money was to be paid, $7,000 on the first of March, 1886, the date of the delivery ofthe deed; the balance in six notes of $1,000 each, bearing interest payable in one, two, three, four, five and six years, and secured by a mortgage on the premises.

The petition alleges that Laura J. Nichols now denies she has made such contract of sale, repudiates the same as far as she can, will not perform it, and threatens to, and will, unless énjoined by this court, sell and convey the premises to other persons unknown to plaintiff, before the first day of March, 1886, and has entered into negotiations to that end, being induced thereto by expectatiodof getting a higher price than the above amount; that the defendants are about to remove from this county, where they have resided for many years, to the state of Indiana; that said Laura J. Nichols has no other property except the premises sold to plaintiff. Plaintiff asks that she be enjoined from conveying the property to anyone else, and that the court upon a hearing of this case find that she made a contract of sale; that a decree of the court be made binding upon defendants, and that they be ordered to perform the contract at the time named by executing and delivering a deed to him upon payment of the money and the execution and delivery of the notes and mortgage mentioned in the contract.

To this petition a demurrer was filed, and also an answer.

The case was heard upon the questions of law as well as the •questions of fact.

The answer admits that the contract was signed, but denies that it was acknowledged by the wife separate and apart from her husband; denies all liability upon it; says it was not her voluntary contract, and offers to tender back the money already paid.

There is also an amended petition alleging that upon the first of March, the time when the amount of the purchase-money became due, the first payment was tendered, and also the notes and mortgage for deferred payments, and a deed demanded, which was refused.

The sole question in the case is, whether a married woman can be compelled to execute a contract in writing, made jointly with her husband, to convey her separate real estate, the contract not being in the shape of a deed, and there being no acknowledgment separate and apart from her husband.

The law in Ohio upon the rights and obligations of a married woman as to her separate property has been continually changing and progressing for the last twenty-five years towards one point, and that is, to hold her liable upon all her contracts as if she were a feme sole. The first act passed in 1861, familiarly known as the Keys Act, provided that property which came to her during coverture by conveyance, gift, devise, or inheritance, or purchased by her separate money or means, together with all the rents and issues thereof, should be and remain her separate property and under her sole control, and that in her own name during coverture she could lease the same for any period not exceeding three years, and her personalty was placed under her sole control except where the property had been reduced to the possession of the husband with the assent of the wife. :

The act of March 80,1874, provided that in an action which concerned her separate property, or upon any written obligation, agreement or contract, signed by her, or action brought by her to set aside a deed or will, it was not necessary to join her husband in the action, but it could be prosecuted in her own name, “ and in all cases where she may sue or be sued alone, like proceedings shall be had, and like judgment had and enforced in all respects as if she were an unmarried woman ; ” that in every such case, her separate property and estate should be liable for any judgment rendered therein against her, to the same extent as would the property of her husband, were'the judgment against him; giving, however, the benefit of the exemption laws of the state.

Under this legislation the case of Phillips v. Graves, 20 Ohio-St., 371, was decided, which held that a married woman possessed of a separate estate in real or personal property may charge the same with her debts, at least to the extent that such debts may be incurred for the benefit of her separate estate, or for her own benefit, upon the credit of her separate property,” and, her intention to charge her separate property at the time may be either expressed or implied; ” that such intention may be inferred from the fact that she executed a note or other obligation for the indebtedness, and that courts of equity will énforce the payment-of such charges against her separate estate through a receiver, 1st, by appropriating her personal property; 2d, by sequestering the rents and profits of the realty; and, 3d, by sale of the realty when the same is necessary; that the jurisdiction of courts of equity in this behalf is not abridged or taken away by the operation of the statutes “ concerning the rights and liabilities of married women;" and that the statute providing “for the proof, acknowledgment and recording of d'eeds and other instruments of writing,” is not incompatible with the equitable power of a married woman to charge her separate estate with debts incurred within the scope of the rule.

The court say, on page 385: “We find the English rule to be, that courts of equity upon the principle that the jus disponendi is an incident to the absolute ownership of property, will charge the separate estate of a married woman with the payment of debts arising upon her general engagements, whether verbal or in writing, when her intention so to charge them is either expressed or implied.”

Following this is the case of Jenz v. Gugel, 26 O. St., 527, in which the court hold that section 28 of the civil code, as amended March 30, 1874, was not intended to enlarge or vary the liabilities of a married woman, but merely to change the form of the remedy,” and that “ no recovery can be had against a married woman upon her promissory note, whether executed before or after the date of said amendatory act, unless it appear that she has separate property subject to be charged therewith.”

In Avery v. Vansickle, 35 O. St., 270, it was held that in proceedings to subject the estate of a married woman to the payment of a promissory note executed by her, neither party is entitled to demand a trial by jury; that in an action to foreclose a mortgage executed by husband and wife to secure the payment of the wife’s promissory note, constitutes no bar to a subsequent action to subject the separate estate of the wife to the payment of a deficiency arising upon the sale of the property mortgaged.

In Williams v. Urmston, 35 O. St., 296, it was held that a married woman having a separate estate, may charge the same in equity by the execution of a promissory note as surety for her husband; and that the execution of such promissory note raises a presumption that she intends to charge her separate estate'with its payment, and a court of equity will carry such intention into effect by subjecting such estate to the payment of her debt in the mode prescribed by the statute, overruling Levi v. Earl, 30 O. St., 147, and Rice v. Railroad, 32 O. St., 380, in so far as they conflict with the decision of this case.

In Patrick v. Littel, 36 O. St., 79, it was held that the separate estate of a married woman is chargeable with the performance of her engagements or obligations made Or incurred upon its credit or for its benefit, and an agreement bjr her to pay for services to be rendered' in procuring a loan of money to remove a mortgage from such estate, is an agreement upon its account and for its benefit.

The court on page 82 of this decision say: “A married woman to the extent of her power of disposition over her separate estate, may charge it with such engagements as she sees .fit to make. If subjected to no imposition, a fact always'to be determined in view of the relation she sustains to the parties to the transaction, in connection with its nature and subject-matter, she may charge the property to the extent she might bind 'herself at law, were she sui juris, unless in so doing she •exceeds some limitation upon her power of disposition,” •citing Pollock on Contracts, 73.

And further: “ there is now no limitation upon her power to bind her estate to the discharge of liabilities created on account thereof, where the estate is acquired under the •statute.”

In Gerlach v. Redinger, 40 O. St., 388, a married woman sold and conveyed her separate real estate by warranty deed. She joined her husband in the covenants of the deed in which they warranted and defended the same against the claims of all persons whomsoever. Two valid liens, tax and mechanic’s liens, existed upon the real estate at the time of the execution of the deed, and the court held that by the covenants so worded she charged her separate estate with the removal of the incumbrances, and the grantee was entitled to have the sums paid by him to discharge them, deducted from the unpaid purchase-money.

In opposition to the claim that she was so liable, it was -contended by counsel that a married woman is not liable in damages for the breach of the covenants of her deed upon the authorities of Hill v. West, 8 O. St., 223; Rosenthal v. Mayburgh, 33 O. St., 159; Kelley’s Cont. Married Women, 103, and cases-.cited, and I Bishop on Married Women, 603. But the court-say : “ In the contract for the sale and conveyance of her separate real estate, witnessed by the deed of conveyance, with its covenants peculiarly worded, Eliza Redinger agreed that her separate property should be charged with the payment of all liens that were upon the real estate at that time. This was just as much a part of the contract as was Gerlach’s promise to pay a part of the purchase-money at a future date. * * * * The recent decisions of the supreme court of Ohio have tended to enlarge the rights of married women in regard to their separate estates, and consequently increased their liabilities. Our conclusion in this case is in harmony with the spirit of these decisions.”

But in Murdock v. Lantz, 34 Ohio St., 589, a case decided in 1878, it was held that where a married woman, seized in fee of an ancestral estate, joins with her husband in a written agreement to exchange her estate for other property, and dies before the execution of deeds of conveyance, leaving her husband and brothers and sisters, but no children, surviving her, the ancestral estate will pass to, and vest in, the brothers and sisters, subject to the life-estate of the husband. The court say: “ That by reason 'of her coverture the agreement as to-her was absolutely void. In respect to such agreements as the one under consideration, the disability of a married woman has in no wise been removed by our legislation. The contract being void, she did not, thereby, part with any interest in the land.”

Under these decisions and the law as enacted by the legislature, a married woman could contract a debt, bind her separate estate, real or personal, and a court of equity would enforce the payment of it by a sale of her property, real or personal, and by its decree, would vest in the purchaser a good title. But in the case of Murdock v. Lantz, supra, it was held that she could not make a contract to convey her separate estate which would be enforced in equity; and upon that authority we should be compelled to hold that this contract could not be enforced in this case. But since that decision the legislature has still further, as we conceive, in consonance with the progressive idea of all the laws enacted upon that subject to confer the rights and impose the liabilities of a feme sole upon a married woman, enacted the law (81 O. Laws, 65, amending Secs. 4996 and 5819, Rev. Stats., passed March 20, 1884,) providing that a “ married woman shall sue and be sued as if she were unmarried, and her husband shall be joined with her only when the cause of action is in favor of or against both her and her husband.”

Section 5319: “ When a married woman sues or is sued, like proceedings shall be had and judgment rendered and enforced as if she were unmarried, and her property and estate shall be liable for the judgment against her, but she shall be entitled to the benefits of all exemptions to heads of families.”

Another act was passed affecting the separate property of the wife (81 O. L., 209, passed April 14, 1884), providing, Sec. 3108: “Any estate or interest, legal or equitable, in real or personal property, including rights in action belonging to a woman at her marriage, or which may come to her during coverture by conveyance, gift, devise or inheritance, or by purchase with her separate money or means, or due as the wages of her personal labor, or growing out of any violation of her personal rights, shall, together with the rents, incomes, issues and profits thereof, be and remain her separate property.”

Sec. 3109 especially provides that the “ separate property of the wife shall be under her sole control, and shall not be taken by any process of law for the debts of the husband, or be in any manner conveyed or incumbered by him, and she may in her own name during coverture, contract to the same extent, and in same manner as if she were unmarried.”

Sec. 3112 provides that “ Secs. 3108 and 3109, shall not affect any of the provisions of Secs. 4106, 4107, 4108 and 4176, nor any rights which vested prior to May 1, 1861.”

The question is, has the legislature by these recent acts changed the liability of the wife, and given her suchyas disponendi of her real estate as that she may be held liable for her contract to convey, when made in writing in conjunction with her husband? The terms of the amended Sec. 3109 are very full and general, that she may in her own name during coverture contract ato the same extent and in the same manner as if she were unmarried.”

This law is limited, however, by a subsequent amendment. (82 Ohio L., p. 131, passed April 16, 1885.) Sec. 3108 by that amendment provides that she may “ without the consent of her husband lease her real estate for any period not exceeding three years.”

We have, then, the'se two laws to consider. First, the law of 1884, giving a married woman absolute control over her property, to contract in the same manner and to the same extent as if she were unmarried,” and the subsequent statute of April 16, 1885, providing that she may, “ without the consent of her husband, lease her real estate for any period not exceeding three years.”

Now, if it were not for this last statute, we think it would be clear that she could make any contract in reference to her real estate in her own individual name just as if she were a feme sole. But this last statute requires that any lease beyond the term of three years must be with the consent of her husband, and from this we think, it is clearly inferable that while she has the general control and management of her property, as if she were a feme sole, whenever she attempts to make leases beyond three years or exercises any rights of lease over her property which shall extend beyond,that period, it must be with the consent of her husband. She may, therefore, under this last statute, with the consent of her husband lease her separate property for a term of years or perpetually, (which is substantially under our laws a conveyance in fee).

How far is this act controlled by Sec. 3112 of the act of April 14, 1884? That law provides that the provisions of sections 3108 and 3109 shall not affect the provisions of sections 4106, 4107, 4108 and 4176. These are the sections of the deeds’ act, which provide that when a deed, mortgage, or other instrument of writing, in which any land, tenement, or heriditament is conveyed or otherwise affected or incumbered in law, such instrument shall be signed and sealed by the grantor or maker and acknowledged in the presence of two witnesses before an officer authorized tó acknowledge it; that it shall be signed and sealed by the husband and wife, and that the wife shall be examined separate and apart from her husband, and the contents of the deed shall be read or otherwise made known to her, and shall be duly acknowledged, etc.

But we do not think that these exceptions interfere with the right to make the contract to convey. They are simply in reference to the mode of conveying the- legal title. They are as necessary now as they were before. Before a deed can vest the legal title of the husband and wife in a grantee, that deed must be acknowledged as the law provides; but it in no manner affects a contract to convey. That is binding upon the grantor without acknowledgment. And so while the legal title of tne wife to her separate property must be conveyed according to the terms of the statute, in the mode and manner provided in the statute, yet there is nothing in this exception to interfere with her power to agree to convey, and she would be subject to this agreement as any other person would, who had made a contract to convey property. While the court could not compel her to acknowledge before an officer that it was her voluntary act and deed, and this acknowledgment to be made separate and apart from her husband; while courts can not compel the husband to acknowledge a deed, yet when they come to enforce a contract for the specific performance, they require, as is the usual custom, the parties to execute a deed in conformity with the statute, and if not executed, a decree of the court would stand as such deed. This would be the form of decree under all the former decisions of this state. Wheré the wife made a note or any contract to bind her separate estate, and it was sought in equity to charge that upon her separate estate, and to sell it, while the court could not compel her to execute a deed to the purchaser, it could direct the property to be sold, and the officer who sold it to give a deed to the purchaser, which would be as effective as if signed, sealed and acknowledged by the husband and wife, under the statute, before the proper officers.

The question is not without very great difficulty in view of the former law and the decisions of the courts, but we think the tendency of all the decisions, not only of our own courts, but of other states and countries, is toward this point, to place the wife, as to the disposition of her real estate and personal property, in the same position as if she were a feme sole. And especially is this so under the provisions of the law of 1884, which it seems to us could'not have been enacted for any other purpose than to extend her power of disposition of her property beyond that which was held in the case of Murdock v. Lantz, supra.

Moadly, Johnson & Colston and Wallace Burch, for plaintiff.

Disney & Collins, for defendant.

But this same question has been passed upon by other courts whose decisions and the reasons given therefore are entitled to respect. In Koch v. Seifert, Ham. Co. Com. Pleas., 18 Law Bull., 15, it was held that a married woman may bind herself to the same extent and in the same manner by contract as if she were unmarried, and the same ruling has been made in City National Bank v. Holden, Montgomery Co. Com. Pleas, 14 Law Bull., 399, by a very able judge.

The decree will therefore be, that the defendants upon the payment to them of the amount specified in the contract, and the execution of the notes and mortgage, convey the property to the plaintiff within ten days, and in default thereof, upon the payment by plaintiff of the amount of money to the clerk of this court, and the execution of the notes and mortgage, that the decree of the court operate as a conveyance to him of the property.

Swing, J., dissented.

[Exceptions were taken to the judgment, but the case was settled between the parties on the basis of the decree.]


source: Caselaw Access Project

author: Stewart, J.

license: Public Domain

text:
    (Second Circuit — Miami Co., O., Circuit Court
    April Term, 1886.)
    Before Williams, C. J., and Stewart and Shattck, J. J.
    Hattie Forgy et al. v. The Cincinnati, Hamilton & Dayton R. R. Co.
    An appeal does not lie from an interlocutory order modifying an injunction.
   Stewart, J.

This action was brought in the court of common pleas to restrain the defendant from doing certain acts which, it is alleged, are very injurious to plaintiffs’ health, and to their property; and to their use and enjoyment of the same. The case is still pending in that court, but an appeal was taken by the plaintiff from the following interlocutory order:

“ This cause came on this day to be heard on the motion of the defendant to dissolve the temporary restraining order heretofore issued in this cause, for the reasons set forth in said motion. On consideration whereof, the court, being fully advised in the premises, doth order and adjudge that said restraining order be and the same is hereby dissolved, and held for naught, except as to the increase in the height of said platform and as to the noxious and unwholesome smells. The defendant has leave to plead forthwith to the amended petition of plaintiffs. The plaintiffs gave notice of their intention to appeal from the order and judgment of this court, dissolving said restraining order to the circuit court of Miami county; and after good cause shown, the operation of the interlocutory order dissolving said restraining order is suspended for ten days to enable plaintiffs to perfect their said appeal; and the court doth fix the. amount of the appeal bond at $800.”

The first question presented for the consideration of this court is a question of jurisdiction; the. jurisdiction of this court being challenged by the defendant.

The jurisdiction of this court is thus defined in section 6, article IY, of the constitution :

The circuit court shall have like original jurisdiction with the supreme court, and such appellate jurisdiction as may be provided by law.” If this court has any jurisdiction of this cause it is conceded it is appellate jurisdiction.

The legislature has provided what appellate jurisdiction this court shall have. R. S., § 5226, [82 v. 32], so far as it relates to the question here presented reads as follows : “ In addition to the cases and matters specially provided for, an appeal may be taken to the circuit court by a party, or other person directly affected, * * * * from an interlocutory order made by the common pleas court, or a judge thereof, dissolving an injunction, in a case of which it had original jurisdiction.” But for this statute no appeal would lie from an interlocutory order dissolving an injunction. 2 High on Inj., § 1702. So that this statute', is our guide in determining the question of jurisdiction.

R. S., § 5571, et seq., provide for the granting of temporary injunctions and for their dissolution or modification.

R. S., § 5573, provides for granting an injunction “ at the time of commencing the action or at any time before judgment ; ” and for its vacation previous to trial of the action.”

R. S., § 5584, provides: “Where an injunction has been granted, a party may, at any time before the trial, apply to the court in which the action is pending, or á judge thereof, to vacate or modify the same; the party applying for such vacation or modification shall give the adverse party ” notice, etc.

Here is a clear distinction recognized ,in the statutes between dissolution or vacation and modification. It is also clear that R. S., § 5226, provides only for an appeal from an interlocutory order dissolving an injunction. Following, in this instance, the plain rules for the construction of statutes, it is apparent that the legislature used the word “ dissolving ” in its ordinary sense ; and a difference being apparent from the reading of the statutes between “ dissolving ” and “ modifying,” we must conclude that where the term “ dissolving ” is used alone, that “ modifying ” was not intended to be included.

In the case of Gilliland v. Administrators of Sellers, 2 Ohio State, 223, the court say: “Although a court may acquire jurisdiction of parties by their consent, yet a court of special and limited jurisdiction, can not as such court acquire jurisdiction of a subject-matter not conferred by the law of its creation.” And in the 2 O. R., 551: “ When a remedy pursued is given by statute * * * * it is necessary to follow the course which it prescribes in every material point. * * * * However correct it may be to presume jurisdiction, in cases within the general jurisdiction of the court, yet where the jurisdiction is created by statute, and limited to particular cases, of which it could not take cognizance without the statute, the jurisdiction can not be presumed. * * * * The maxim, ‘ it is the part of a good judge to extend the jurisdiction,’ does not apply to courts of limited jurisdiction, * * * * much less to cases of which the jurisdiction is wholly dependent upon statutory provision.”

J. 8. Forgy and H. H. Williams, for plaintiffs.

R. D. Marshall and Sullivcm & Earnhart, for defendant.

This is a court of special and limited jurisdiction, andas its appellate jurisdiction is dependent upon the statute, to bring a cause within its appellate jurisdiction, it must come clearly and unmistakably within the provisions of the statute.

Upon' examination of this interlocutory order appealed from, it clearly appears to be an order modifying the injunction. It is true it appears that the motion submitted to the court was to dissolve the injunction, yet the court instead of dissolving, modified it. The injunction is not dissolved; it still stands as modified; it is still within the control of the court below, and it may still further modify it or change its terms. The case is still pending there, and for this court to assume jurisdiction, when it is not clearly conferred, would result, as was well said by the supreme court of Missouri in the case of Tanner v. Irwin (1 Mo. R., 47), in “ so carving up the case, that when the chancellor came to pronounce a final decree, the fragments of the case would be to collect, and the proceedings would be involved in endless perplexity.”

It being clear then, that the order appealed from is not ap interlocutory order dissolving an injunction; but modifying it, it follows that this court has no jurisdiction of the cause, and the appeal will be dismissed. ■ '


author: Smith, J.

text:
    (First Circuit — Hamilton Co., O., Circuit Court
    January Term, 1886.)
    Before Judges Cox, Smith and Swing.
    John W. Fels v. George W. Fels et al.
    1. Whether a transfer of personal property by a father to a son, is to be considered as a gift or advancement, or whether the amount or value thereof is to be regarded as a debt against the son, depends upon the intention of the parties at the time.
    2. Where, in a proceeding for the partition of the real estate of an intestate (there being no personal estate for distribution) it is sought to charge one of the heirs at law, with an advancement claimed to have been made to him by his father, in personalty, and the only evidence submitted was proof of a book of the intestate, in which appeared various accounts, kept by him with a large number of persons, and among them one with his son, in the ordinary form of an account, with items of debts to him on the one side, and of credits on the other —many of the charges being for small sums, less in amount than 51, for cash furnished the son, and small articles purchased for him, with larger s.ums paid for his clothing, books, boarding bills, and medical education during several .years, while the son was unmarried and making his home with his father, and containing other charges against the son of two checks of f450 each, with entries of payments . made by the son on the account, prima facie, this is a debt against the son, and not an advancement to him, and cannot be charged to him as such; nor can it in such proceeding, be deducted, as a debt due to the estate, from his share of the land, or the proceeds thereof.
    Appeal from the Court of Common Pleas.
   Smith, J.

This case comes into this court by appeal from the court of common pleas, and the issues are thus made. On the 19th of October, 1883, the plaintiff filed in said court a petition for the partition of the real estate of hi-s father, Medard Fels, who had died a short time before, alleging that he, his brother, George W. Fels, and his five sisters', were each seized in fee-simple of an undivided one-seventh of said, real estate, subject to the dower of his mother, Mary Fels, widow of said deceased. In the petition there was no allegation that any of the heirs of Medard Fels had received any advancement from him in his life-time.

George W. Fels, one of the defendants, filed an answer, alleging that the plaintiff had received an advancement from his father of $1,100, and the five daughters, by way of answer and cross-petition, alleged that George W. Fels had also received an advancement from him of $2,700. George W. Fels then filed an amended answer and cross-petition denying that he had received any advancement from his father, but alleging that each of his five sisters had, to the amount of about $1,000. This they by their reply denied. John W. Fels did not deny that he had received an advancement as claimed.

At the trial of the case here, no evidence was offered tending to prove an advancement to either of the daughters, and the case was heard on the issue as to whether George W. Fels had received an advancement from his father. For the purpose of showing that he had, an account-book of the father was produced, and offered in evidence, with the testimony of Wm. Autenrich, the husband of one of the daughters, that it was partly in the handwriting of Geo. W. Fels himself, and partly in that of Medard Fels. The book of account thus offered was evidently one in which thedntestate kept his general accounts with those with whom he had dealings. It contains á large number of accounts with other persons, with charges against and credits to them. Among others is a large account covering a period of several years, with Autenrich, the witness -referred to, showing charges against him, for rent, and for other matters, with credits of cash paid to the intestate by him, a'nd a large number of items of credit of cash, and boarding furnished by him to Geo. W. Fels, and which brought together in one item, are charged against the latter in the account with him offered in evidence and contained in this same book. There is, however, in this book, no account with any of the other children of Medard Fels, and nowhere is there to be found in it, what purports to be an advancement charge, against any one of his children.

The account with George W. Fels referred to, is one in the ordinary form of a debit and credit account. It commenced several years before 1877, and the greater part of it (in length, at least) is shown to be in the handwriting of the son himself. This part closes in 1877, and to what appears in the handwriting of the son, are added several items in the handwriting of the father, charging him in one item with the sums brought from Autenrich’s account, amounting to several hundred dollars, and with two checks of $450 each, and crediting him with two items of cash of considerable amount. The greater part of this account accrued more than six years prior to the death of Medard Fels. The nature of the account itself, and of the character of the items charged in it will be more fully referred to hereafter.

Geo. W. Fels offered himself as a witness to show that this was not an advancement to him, by showing conversations between himself and his father in his life-time, but objection being made, that he was not a competent witness, as to such matters, under Sec. 5242, Rev. Stats., he was not permitted to give such evidence.

The question for decision then is, whether on the evidence submitted, the court should find that George W. Fels should be charged with the balance appearing to be due on that account, as” an advancement made to him by his father.

Sec. 4169, Rev. Stats., provides, that if any estate, real or personal, has been given by any intestate in his life-time to any child or children of such intestate, or their descendants, it shall be considered and held to be a part of the estate of the intestate so far as it regards the division and distribution thereof, and be taken by such child towards his or her share of the estate.

It is clear in Ohio, that where a father with his own means buys land or property and has the title made to a child, that this is prima facie an advancement to such child. But as stated in the case of Creed v. Lancaster Bank, 1 O. S., 10, “ this is a mere abstract presumption, that may be rebutted by “ circumstances, or evidence going to show a different intention-, and each case has to be determined by the reasonable presumptions arising from all the acts and circumstances connected with it.” And from this it would seem, that in this, as in other states, the question whether a particular transaction or dealing between a parent and child, by which one receives from the other money or other property, constitutes an advancement to the child or a gift to him, or a debt against him, depends upon the intention of the parties at the time— in some cases perhaps on the intention of the parent alone— in others on the intentions of both of the parties.

For if money is actually given to a child as a gift, and was so understood at the time by both of them, we imagine that the father by a mere entry of it on his account-book as an advancement, could not make it so; or by a declaration that he wishes it to be so considered. But he has. the right to determine at the time the transfer is made, how it shall be considered, and it then depends upon his intention, which is to be determined by evidence, or shown by the circumstances of the case.

And we are of opinion that in analogy to this rule of the law, as to the presumption which arises on a conveyance of land by a, father to a sen, or where he has the title made directly to him, that prima facie, this is an advancement to him, that if it were shown in a given case that a father had turned over to his son, who had arrived at full age, a very considerable sum of money (taking into account the amount of his estate, he having other children with equal claims upon his bounty) for the settlement of the son in life, or to invest in real estate, or it may be to be used for his professional education, or to pay a debt, and nothing else be shown, that the presumption would be, that it was intended as an advancement, and such seems to be the tenor of the authorities cited from other states.

On the other hand, when it appears that the son is at the time living in the family of the father, and is not yet settled in life, and small payments are made to him from day to day,- or from time to time, for his living expenses, it seems to us that the presumption that they were advancements would not arise, oratleast, would be greatly weakened; indeed theauthorities cited are to the effect, that sums paid to a child for purposes of pleasure or amusement, or for clothing and such like personal expenses, are not to be regarded as advancements, without other proof that such was the intention. 40 Pa. St., 57; 8th Allen, 411; 11th Iredell, N. C. (L.), 48.

What is the effect of this account of Medard Fels against his. son? Our statute, section 4172, recognizes the fact, that the intention to make an advancement to a child, may be shown,. prima facie, at least by “a charge thereof made by an intestate.” And certainly, if on his book of account, or in other equally authentic manner, a father states that he has made an advancement to a child of a certain amount or value, this, in the absence of anything to the contrary, would be taken as true.

Such, however, is not the fact in the case before the court. As I have before said, the account from which we are asked to infer the intention of the father, does not, in any way whatever, pretend or allege, that the items contained in it were advanced to him on account of his interest in his father’s estate, or were to be accounted for by him after his death, but is in the ordinary form of a money charge against him, of moneys paid to or for him, with items of credit to him for cash repaid thereon. Then too the character of the charges in many instances is not such as are usual, where an advancement is intended.. Many of them a-re of cash charged for articles purchased (extending over a period of several years), less in amount than $1, and ranging from five cents up — they are sums paid for hats, boots, clothing, memorandum and other books, for his professional education, and for his boarding during the time he was at the medical college, with a few other items of cash of considerable size. And many of them would seem clearly to be of that character, which the law, according to the authorities cited, would not presume to have been intended as advancements.

Another fact appears from the testimony given, which, although negative in its character, greatly strengthens the conclusion that the father did not intend this to be counted as an advancement against the son. Aside from the fact that there is no attempt by those claiming it to be such, to show that the father ever declared that it was, it appeared from the cross-examination of Autenrich, a son-in-law of the deceased, who was very familiar with this and the other accounts and business affairs of Medard Fels, and who furnished to the son many of the items charged in this account, at the request of the father, that even to him the old gentleman had never made any such claim or declaration. If such had been the intention of the father or the arrangement between him and his son, it would have been most natural for him to have said so to his son-in-law, or to some of his other children interested in the settlement of his estate and in the advancements made to them — but nothing of this kind appears.

Surely, on the face of the account itself^ without anything to explain or change its apparent meaning, it is an ordinary charge made by one person against another, and on which an action would lie, and if nothing to the contrary appeared» and the proof showed the payment of the money by the father, to or for the son, a recovery might be had thereon, and the court in such case would not be justified in treating it as an advancement to the sou, from the simple fact that such relation existed between them. 40 Pa. St., 57; 2 Pick., 337; 20 Conn., 322; 2 Grant’s Cases, Pa., 404.

Can this account, or any part of it, be deducted as a debt from the share of the son, in the land sought to be partitioned, as claimed by counsel for the opposing parties? We think not. There are two cases cited from the Penn. Reports (57 Pa. St., 179, and 80 Pa. St., 429), which seem to recognize and hold that this may be done. Both of these were appeals from the probate court, in which the settlement of the whole estate of the intestate had been had, and the decision may have been, and we think probably, was, founded on the peculiar practice in that state.

Campbell, Bates & Bettman, for plaintiff.

Wúlsin & Perkins, for daughters.

Carr & Dengler, for George W. Fels.

But there are strong reasons why that course can not properly be pursued here. If it is an advancement, it is to be counted as a part of the real estate (the personal property having been expended in payment of the debts of the intestate), and the grantee of John W. Fels, who has taken his interest in the real estate, would be entitled to his share thereof. If it is a debt, it goes to the administrator of Medard Fels, to be divided between his widow and children. And the question whether it is a valid debt, is one not raised by the pleadings, and the son has had no opportunity to contest that question. The decree will be that the amount of this account is not to be considered as an advancement against George W. Fels, but it will' reserve any right the administrator of the estate may have to sue for, or recover the same or any part of it which may be due and payable.