$625 dollars each; that he intended it as a gift, in consideration that they had assisted him in accumulating his property; and that he intended that these children should have this much more than his children by the second wife. pronounced it a gift, and not an advancement.

The court

The question in this case arose in an action for the parti tion of real estate.

A similar question was decided in Lawson's Appeal, 23 Penn. St. R. 85. In that case, the father, who had accumulated considerable property in the lumber business, retired from the business. He had five children. He gave to each of his two sons the one-fifth of his property; and in addition thereto, surrendered to them the use of his lumber-yard and his business, declaring that he had presented the business to his boys, and made no charge.

This surrender of the business and the lumber-yard was held to be a gift and not an advancement.

It was said by the court: "We think the sound conclusion is, that he meant a gift rather than an advancement; and the character impressed then must remain. That which was a gift at first cannot become an advancement, no more than an advancement can become a gift." This decision fully accords with the Connecticut cases before cited.

There is a distinction taken in Ison v. Ison, 5 Rich. Eq. R. 15, between the bestowing by the father to the children of things merely for pleasure to the children, and things to be used by them for profit. Things of the former class are construed as merely gifts, while those of the latter are considered as advancements. That is the rule when there is no extrinsic evidence to show a contrary intention on the part of the father. In that case, the child had been presented with a stallion, to be used as a foal-getter, for profit; and the court held, it was an advancement. At the same time it was said, if the present had been of a saddle horse, it would have been held as a gift, in case it appeared to have been bestowed for the purpose of pleasure. The grounds of the decision were, that, in the one case, there was evidence of an intention of

an advancement, because it came within the idea of bestowing upon the son, "in anticipation of what he might inherit," or, "with a view to a settlement in life;" and, in the other case, there would have been an absence of evidence of any such intention.

In Murrel v. Murrel, 2 Strobh. 148, the chief question. was, whether certain lands conveyed by the father to his two oldest sons were to be treated as advancements in the final distribution of his estate, he having died intestate. The testimony was, that the sons were the oldest of the children. That the father was poor, and his other children young. That these boys worked liked negroes, and gave him a start in the world, and that he repeatedly expressed an intention to give them each a tract of land, beyond a child's share, in remuneration of their faithful and valuable services; and that after he conveyed the lands, he declared he had fulfilled the intention he had expressed.

It also appeared, that, during the time the services were being rendered, the father held out promises of remuneration to his sons for their extraordinary exertions, to be realized in the distribution of his estate. The chancellor held that the lands conveyed were not to be treated as advancements, and, on appeal to the Court of Appeals, his decision was affirmed.

It was said, "that though a parent is entitled to the services of his children while under age, he may waive his right and may make the scrvices of his children the consideration of a contract or promise, and that he may give property bona fide in the performance of such obligation of justice, without its being subject to a claim on the part of the other children to consider it in the light of an advancement. They were not advanced by these conveyances, although the lands were given to them by their father."

It is evident, from the whole range of the authorities, that the declaration of the New York statute, before set forth, that "the giving of money to a child, without a view to a portion or settlement in life, shall not be deemed an advancement" is declaratory of the well-settled rule of this country.

There may be some doubt whether the rule settled by the decisions of the courts in Alabama, that a donation from a parent to a child is always prima facie evidence of an advancement, until the contrary be shown by some contemporaneous or accompanying evidence, is the rule of the States generally. But there is no doubt of the general rule that the intention of the donor controls the character of the donation in that respect. There is some difference in the mode of proving that intention, in the practice of the different States, as we shall show before we leave the subject.

SECOND.

MONEYS EXPENDED BY THE PARENT FOR THE MAINTENANCE OR EDUCATION OF THE CHILD ARE NOT REGARDED AS ADVANCEMENTS, EXCEPT WHEN THERE IS EVIDENCE THAT THEY WERE EXPENDED WITH INTENTION THAT THEY SHOULD BE ADVANCEMENTS.

We have before shown, that the rule in this respect is declared by statute in New York. Money expended for maintenance and education, "without a view to a portion or settlement in life, shall not be deemed an advancement," according to the statute provisions.

1 R. S. 754, § 26; 2 id. 98, § 78.

Regarded in the light of principle and propriety, that is the true rule. The parent is morally, socially and legally bound to support and educate his children. Consequently, the fact that he has done so raises no presumption of any other intention than the intention of discharging that duty. It falls short, in ordinary cases, of raising a presumption that he thereby intended to make an advancement.

In Vail v. Vail, 10 Barb. 72, it was remarked, in the opinion of the court, that "the exclusion was made to comply with the general sense of what was proper, and because money so expended was not deemed an advancement, nor incompatible with the object expressed,' of making all the shares of the children equal, as near as can be.'"

That seems to be the rule generally of all the States. It was so declared in Riddle's Estate, 19 Penn. St. R. 431. It was, in that case, held, that money expended by the parent in the education of his child was not an advancement, unless the intention to make it an advancement expressly appeared.

In that case, the father had kept an account of expenditures for the clothing, board and tuition of his son, to an amount, in the aggregate, of $700; which, from all the evidence in the case, the court pronounced to be an advance

It was so held, because the intention that the money expended should be an advancement was shown by the circumstances and facts of the case.

There is a case in Alabama, Mitchell v. Mitchell, 8 Ala. (N. S.), 414, where expenditures of a like character were decided not to be advancements. The doctrine was proclaimed, that moneys expended for the education of children could not be treated as advancements, and should not be equalized between them in the final distribution of their father's estate.

The father, in that case, kept an account with his son, the first item of which was one of $920, for his expenses at college. After footing up the several items, there was added, in the handwriting of the father, as follows: "Accounted for as so much that he has had of my estate; if it is over his portion, he must pay it back to them."

This account and entry of the father was held not to be conclusive evidence of an advancement, but to be open to be repelled by other evidence to the contrary, consisting of the declarations of the father, that the account was not intended as evidence of either an advancement to the son, or of an indebtedness against him.

It was remarked by the court, that "trifling presents, money expended for education," etc., "could not be presumed to be an advancement." Expenses for maintenance and education of children by their parents were held to be of a character not to be changed into advancements by the mere declarations of an intention to that effect by the

parent, unless he made such intention manifest by his will. This is a sensible rule which has been very generally accepted. To turn such expenditures into an advancement should require a particular arrangement with children of an age to make agreements; or the expenditures should be made. under circumstances which bear evidence of an intention to bestow the opportunities of education upon one more than upon others, as a particular investment designed as the source of future livelihood; as, for example, educating a son to some one of the professions or callings designed to be practiced as the source of living. Such expenditures have been sometimes properly treated as so much capital appropriated to business, like capital furnished to merchandise or other calling which required investment; and have been regarded as advancements, in like manner with money furnished for other callings, which are more directly based upon pecuniary investments.

Beyond such considerations and purposes, there is no good sense or propriety in treating the expenditures of parents in the maintenance or education of their children as advancements.

THIRD. NO DELIVERY OR TRANSFER OF MONEY OR PROPERTY BY THE PARENT TO THE CHILD, WHICH LEAVES THE CHILD LEGALLY INDEBTED TO THE PARENT, SO THAT HE COULD BE ADJUDGED TO PAY THE PARENT THEREFOR, IN ANY FORM OF ACTION, EITHER AT THE SUIT OF THE PARENT WHILE LIVING, OR AT THE SUIT OF HIS EXECUTORS OR ADMINISTRATORS, AFTER HIS DECEASE, CAN BE REGARDED AND TREATED AS AN ADVANCEMENT.

Upon this proposition the reported decisions are uniform. In many of the cases the question in dispute has been, whether the money or property transferred was a sale, a loan or an advancement. But no case holds that a transfer by way of sale or loan is an advancement. And no transfer which was made as a sale or loan can afterward be changed