dissenting. — I am unable to concur in the foregoing opinion, and will give briefly the grounds of my dissent.
■ The instruments, under which the defendants are, by the decree of the Circuit Court, deprived of an interest in the estate of their deceased father, cannot be regarded as releases. They are in effect acknowledgments of the receipt of certain property, which the heirs agreed should be regarded as full satisfaction of their claims upon their father’s estate. What they received, if anything, was an advancement, and the writings witness the receipt of the same, and declare that no further claim upon their father’s estate, or rather no claim shall be made thereon, the advancements being regarded as in full satisfaction for their respective shares of the estate. The instru*475merits are not releases in the true sense of the word. They released no interest and conveyed no right to the father, because they related to a subject in which the parties executing them had no interest and held no right. A child has no interest in his father’s estate before his death, for two reasons: Before death there is no such thing as an estate, applying the word to the property of a deceased person. To hold an interest in an estate one must be an heir. Nemo heeres est viventis.
■ For these and other reasons I think the instruments are writings evidencing advancements and nothing more. Regarding the instruments in this character, can they be contradicted or explained by parol evidence?
Questions of advancement must always be determined by arriving at the intention of the ancestor at the time donation was made to the heir. If the father in the case before us intended that the property transferred to the defendants should be held as an advancement, that intention the law will carry out. It will not, in executing the writings, take from defendants property in his estate which the father intended they should possess. This intention, in my opinion, may be shown by declarations of the father, whether oral or in writing, which are a part of the res gestee. This position is not inconsistent with the rule of evidence which forbids instruments in writing to be contradicted or explained by parol proof. The instruments in question are not, as I have shown, releases or conveyances. They have no higher character than that of being evidence of an advancement. The evidence rejected by the court, it cannot be said, would contradict or vary the legal effect of the instrument. They are in law evidence of advancement; the parol proof gives them no other character.
But I understand the rule to be that declarations of the parties interested which are of the res gestee' are admissible to show that a donation by a parent to a child was intended as a gift, loan or advancement, although the act is evidenced by a 'written contract.
The principles I have here briefly stated, are discussed in Bingham on Descents, pp. 344-405, and many authorities are cited, which, in my opinion, support the view I have advanced.