delivered the opinion of the court, October 6th, 1884.
It is certainly true, that a conveyance of lands, by a parent to a child, in the form of a gift, or the payment by the parent of the purchase money of lands conveyed to the child, is prima facie, an advanced portion; and the presumption of an advancement, in such a case, is greatly strengthened when the value bears any considerable proportion to the parent’s whole estate. This rule of law is well settled under our decisions: Dutch’s Appeal, 7 P. F. S. 466 ; Wagner’s Appeal, 2 Wr. 122; Murphy v. Nathans, 10 Id. 508; Weaver’s Appeal, 13 P. F. S. 309. The law presumes, that in the distribution of his estate among his children a father will not unjustly discriminate between them ; upon this is grounded the doctrine of advancements. But an advancement is in the nature of a gift, not a sale,- no such presumption arises when the transaction assumes the form of a conveyance for full value; no injustice or inequality can result from a sale under such circumstances.
The conveyances made by John Miller to his sons, Jacob and David, in the year 1860, were in form, at least, deeds of bargain and sale; they are not founded on a consideration merely nominal, or one of love and natural affection ; the consideration expressed in the deeds is admittedly the full value of the lands, and the payment thereof is not only recited in the body of the deeds, but is formally acknowledged in the appended receipts. We must therefore, in each case, in the first instance at least, assume the transaction to be what upon the face of the papers it appears to be, viz.: a sale of the land by father to son, for a valuable consideration paid, and the burden of proving that the conveyances were an advancement only, falls upon those who allege it. The fundamental error of the court, in reference to these conveyances of 1860, arises out of the failure to give proper effect, in the first instance, to the face of the papers. The opinion proceeds wholly upon the assumption of a gift, and the relations of the parties, the proportion of the gift to the donor’s estate, the exactness of the consideration, and other matters of a like *228nature, were introduced to qualify the assumed gift as an advancement. But as the papers imported a sale, and a payment of the consideration, the proof of these various matters was ineffectual for the purpose intended; if the transaction was indeed a sale, exactness in stating the consideration would be expected, and the relation of the parties, and the proportion which the premises conveyed bore to the grantor’s whole estate, were matters altogether unimportant. The case was ruled, as respects the deeds of 1860, upon the presumption which was supposed to arise from the relation of father and son. Parol evidence might have been received to prepare the way for this presumption, but no witness was called who testified to any material fact bearing upon this branch of the case. There was no evidence whatever of acts done or declarations made at the time of the transaction^ nor was there proof of any subsequent act or thing, which could be regarded as material to this inquiry. The case, as to the deeds of 1860, rested upon the conveyances alone.
The mere ex parte declarations of John Miller, made in the absence of his sons, and not communicated nor agreed to- by them, were incompetent to affect their' interests. The deed to Mrs. Funk, executed in the same form and similarly receipted, at a later date, was delivered without question after the death of John Miller, but it had been recorded, which was prima facie evidence of a previous delivery; besides, we have no evidence whatever as to the nature of the dealings between Mrs. Funk and her father, and because it may be convenient now for her to admit that her conveyance was an advancement we cannot, without proof, assume that it was so.
The principle ruled in Storey’s Appeal and Boyd’s Appeal, 2 Norris 97, cited by the appellees, is in conformity with what is herein stated. A careful reading of these cases will show very plainly that the deeds there expressed a valuable consideration, but they were not made by the donor directly to the donee; the advancement, in both cases, was of purchase money paid by a grandfather for lands conveyed by another to his grandchild. It is of no avail to argue that the old man was close in his dealings, that it does not appear that he had at any one time so much money on hand, that no checks or notes were produced showing the method of payment; we cannot determine the questions of fact involved upon mere conjecture. If the purchase money was an advancement, it is certainly remarkable that in a period of twenty years’ possession, under an absolute deed of bargain and sale, no act has been done or word spoken to indicate the fact. We are of opinion that the court was certainly wrong, under the evidence, in charging the accountants with the lands conveyed in 1860.
*229The conveyances dated 17 th May, 1873, were in the same general form as those of 1860, and upon their face imported an actual sale of the premises therein described for a full value. But the exceptants say that these deeds of 1873 were never delivered, and that under the statute of frauds the transaction was void ; if this be so, then certainly there was neither sale, gift, nor advancement, and the exceptants’ case as to the lands embraced in the deeds of 1873 must utterly fail, for how could the accountants be charged with what they never received? The burden of establishing an advancement is, of course, upon the exceptants. This they seek to do by exhibiting the deeds; for this purpose they offered them in evidence. If they were never delivered they are as worthless as the paper upon which they are written, and prove nothing. The validity of each deed, as an operative conveyance of the lands, is an essential part of the exceptants’ case; to deny their delivery is to pull down the pillars which they have set up in support of it. The accountants are satisfied with the sufficiency of the delivery, and the exceptants in this proceeding cannot afford to deny it. We may, therefore, without injustice to the exceptants, waive the consideration of that question. The fact that the deeds were retained by the father during his lifetime is proper, perhaps, for consideration in discovering the true nature of the transaction under which they were executed, but their delivery must be assumed in order to reach the exceptants’ case.
Notwithstanding the form of the conveyances of 1873, and the undoubted effect of the receipt for the purchase money, the learned court here again draws from the mere relation of father and son a presumption of an advancement.
The court says, “ Claiming by title from their father with no written evidence of title, nothing but possession since 1873, the presumption is not of purchase and sale, but of an advancement. They claim to hold and own their portion of what was their father’s estate. Mrs. Funk says, ‘ You rightfully claim it, but it was a gift; bring it into botch potch;’ they say, ‘No, we bought and paid for it, and the estate has the equivalent in money;’ this allegation of purchase they must make good.”
If the accountants have “no written 'evidence of title, nothing but possession since 1873,” they have no title at all, and they cannot of course be charged with the lands as an advancement. If they “rightfully claim the land,” it must be under their deeds. They have no other source or evidence of title, and if the deeds do not prove “the allegation of purchase,” they prove nothing. The burden is upon the except-ants to show the transaction to be other than it appears. *230Some testimony was introduced by them for this purpose, much of it was incompetent, consisting of the declarations of John Miller, made in the absence of his sons, and not communicated to them. Such is the testimony of Jacob Wetzel, Sr., George Lehman, Lydia Lehman, Daniel Lecron, Samuel Strite, Levi Fox, John Harbaugh, Jr., and John Smith; portions of the testimony of the other witnesses are largely of the same character. No witness was called by them who was present at the time of the transaction of 1873, the proof is mainly of acts and declarations of the parties, subsequently occurring. The accountants, by way of reply, called witnesses who testify to acts and declarations of a different and contradictory character. It is scarcely necessary, we think, to refer to this testimony in detail; it has already been elaborately discussed by the Auditor, the Court and the counsel in turn; any extended reference to or discussion of it now, to meet the various views suggested, would occupy too much space. The testimony on part of the exceptants, excluding that which is incompetent is fragmentary in form and inconclusive in effect; some of the matters relied upon are trivial in substance, readily reconcilable with the theory of a sale, whilst the more material parts of it are seriously contradicted. The only person present at the transaction of 1873, surviving and competent to testify, was Mrs. Catharine Brown, a witness produced by the accountants, who testifies, that the sons bought the land and gave their notes for the purchase money in her presence; that the deeds were afterwards tendered, but were retained by the father, during his life, at the sons’ request; this witness was in no way discredited or cou-’tradicted. After the father’s death, his sons’ notes, bearing-date 12th April, 1873, in considerable amounts, were found in his possession; these notes are in no way connected with the transaction, excepting in date. They are not for aliquot parts of the purchase money, but as the transaction involved a settlement, the amounts of the notes were liable to be affected by the results of the settlement. The retention of the deeds by the father during his life, and the execution of notes to protect the mother during widowhood, are as readily reconcilable with a sale, as an advancement.
After a patient and careful investigation of the whole case, we regard the weight of the evidence as being in support of the presumption arising from the face of the papers.
The decree of the Orphans’ Court is reversed, and the report of the Auditor is confirmed, the costs of the appeal to be paid &by the appellee.