The opinion of the court was delivered by
Bennett, J.This case comes before this court, by an appeal from the decree of the court of probate.
It seems that John Newell, in his life time, conveyed by two certain deeds to his son, Hernán H. Newell, certain lands for the consideration, as expressed in each of the deeds, of two thousand dollars; and it is insisted that these deeds were executed upon no other consideration than that of love and affection, and that the lauds conveyed, should be adjudged an advancement to this heir. As these deeds, upon their face, purport to have been executed upon- a pecuni*32ary consideration, and not for love and affection, there can be no possible ground, prima facie, for treating them as advancements. The presumption is against it, and the appellants must take upon themselves the labor of removing such presumption. It is indeed questionable, in my opinion, whether, under our statute, relative to advancements, parol evidence can be received to show that a conveyance of lands, purporting to have been made upon a pecuniary consideration, was in fact made for love and affection, and thereby make it an advancement. If, however, such evidence is received, the court are all of the opinion that the other side may impeach the effect of such testimony by parol. The fact contended for is sought to be established, in th is case, by extrinsic evidence ; and it is clear that it may be met by evidence of the same character.
As to the deed of 1836,' there is no evidence to show that it was not executed upon the consideration therein stated. As to the deed of 1838, it seems that the intestate had paid for the other heir, large sums of money ; but had not, as we can learn, charged them as advancements; and it appears, from the testimony, that he undertook to equalize them; and, for this purpose, as well as to compensate Hernán for the property which the latter had received of He-man’s mother, belonging to him, this second conveyance was made. Under the English statute of distributions, a deed for love and affection is but prima facie evidence of an advancement, and this may be rebutted by proof; and the same doctrine is held in Hatch v. Straight, 3 Conn. Rep. 31, the statute of Connecticut, relative to advanced portions, being, in substance, a copy from the English statute of distributions.
If our statute relative to advancements is to have a similar construction, whether it appears from the face of the deed, or from extrinsic evidence, that it was made simply upon the consideration of love and affection, it is clear the lands conveyed, under the deed of 1838, ought not to be deemed an advancement. It must, after all, turn on the intent of the intestate. To hold, upon the facts now in evidence, that this deed constitutes an advancement, would I think do violence to the intention of the deceased, and would *33most probably frustrate that equality which he designed to establish among his children. In this view of the case, the court all concur in affirming the decree of the court of probate. But, as an individual, I incline to the opinion that the evidence should not be received, to show'that either of these deeds was in fact executed for love and affection. As the only consideration, mentioned in either of them, is the pecuniary one of two thousand dollars, it may well be inquired whether it is not inconsistent with well settled principles to admit parol evidence to show a different consideration in character from the one expressed in the deed ; and that too in a case where it is not offered with a view to prove fraud. I think, by a fair construction of our statute relative to advancements, we should exclude it. The statute (Slade’s Ed.) p. 349, provides ; “ that any deed of lands or tenements, made for love and affection, or any personal estate delivered to such heir, whereof a charge or memorandum m writing is made by such intestate, or delivered expressly as advancement, before two witnesses, who were requested by the intestate to take notice thereof, shall be deemed and taken an advancement to such heir.” Where the statute declares that a deed, for love and affection, shall be deemed and taken an advancement to such heir, it seems to me it should be held to be peremptory and conclusive. The statute prescribes the evidence of an advancement to the child, and, consequently, it may be well questioned whether the intention of the intestate is liable to be controlled by parol evidence. The statute declares what the effect shall be. This is the construction given in the case of Whitman v. Hapgood, 10 Mass. Rep. 437, to the act of 1783, which is the same, in effect, as ours, and is not opposed by the case of Scott v. Scott, 1 Mass. Rep. 526. In this latter casé, the consideration expressed in the deed was that of love and affection and a pecuniary one of a trifling amount; and this was held to open the inquiry, by parol, how far the valuable consideration operated between the father and son in the conveyance. I am the more confirmed in the opinion, that this is a sound construction of. our statute, when we take into consideration the ensuing clause, relative to personal estate, which provides that any personal property, delivered to an heir, whereof a charge or memorandum in writing *34is made, by such intestate, or delivered expressly as advancement, before two witnesses, who áre called to take notice of it, shall he deemed and taken an advancement. The subject of advancement is unknown to the common law, and the creation of rights, among heirs, arising from advancements and their regulation, are altogether of statutory origin. Neither the English statutes, nor those of most of the states, declare the effect of a conveyance by the father to the son for love and affection. But as ours is specific in declaring in what cases property, passing from the father to the- heir, shall constitute an advancement, it appears to- me that there is an implied negative, that if it passes into the hands of the child, under other circumstances, it shall not be taken an advancement. Indeed, it is difficult to see how the statute can be called in to lend its aid in the creation of an advancement, when its provisions have not been complied with, which, by its very terms, are made necessary to create it. There was wisdom in the legislature in prescribing what should be evidence of an advancement. We have, by this, a certain rule, on this subject, which shall govern courts of justice, as to the character of the evidence necessary to show the intent of the parent to make an advancement. Thus he is enabled to know with certainty, in his life time, what will be necessary when he shall have been numbered with the dead, to constitute an advancement among any of his children. If, through inadvertence, or any other cause, he has not provided the statute evidence necessary to show his intent, he can, while living, make all things right among his children, by will. Without giving our statute this effect, we should have no certain rule, and the object of the legislature would, I conceive, be thwarted. Suppose property is delivered to the son in presence of but one witness. Is that sufficient ? I think it will not be contended, it could constitute an advancement. Why then is not the statute equally imperative in requiring a charge, or memorandum in writing to be made, where two witnesses are not called. I am not aware that our statute has received any judicial construction at variance with the views now expressed. In the case of Robinson v. Robinson, Bray. Rep. 59, the only point litigated was, as to- the effect of a receipt of one of the heirs; (which was expressed to be in *35full of his share of the ancestor’s estate.) in barring him of ' ° all further claim as heir. It was admitted, by the learned counsel for the heir, that his receipt was such a memorandum in writing as the statute required, and that the sum specified therein should be taken as an advancement. In Pick. Rep. we have several cases giving the same effect to the act of the legislature of Massachusetts, relative to advancements, which is similar to ours. If this is a sound construction of the statute, relative to advancements in personal property, it would seem strange that the legislature should have left it open, as to what should constitute the proper evidence that a deed was executed for love and affection. I must think that when the legislature say that a deed for love and affection, shall be deemed and taken an advancement, it should appear upon the face of the deed to have been executed upon such consideration. If a pecuniary consideration is inserted in the deed, it furnishes evidence, to my mind, that the parent did not intend it as an advancement. To permit the deed, in cases like the present, to be contradicted and controlled by parol evidence, woi Id be to open the door, in many cases,’to much conflicting testimony, and lead to great uncertainty; and would, in my view, be at war with the policy and spirit of the statute.
But, as different views may be entertained as to tlie effect which should be given to the statute, it is not necessary that it should be passed upon in this case.. The court are all agreed, that, though we hold that the testimony offered is admissible, yet, it is insufficient to constitute the lands conveyed by either of the deéds an advancement; and the decree of the court of probate is affirmed.