v.
Jeremiah L. Pattison, Exc'r of James Pattison, and others
delivered the opinion of this court.
In the distribution, by the orphans court of Dorchester county, of the personal estate of the late James Pattison, various questions arose, and the decision of them by the court, gave rise to these several appeals. Of them it is now designed to dispose.
There is proof in the case, that the deceased, sometime before his death, furnished his son-in-law (Stewart,) with $2,000. Was this a loan? Or, was it an advancement? Or, was it money given without a view to a portion or settlement? If the latter, the act of 1798, ch. 101, sub. ch. 11, sec. 6, says it shall not be deemed advancement.
There is much testimony in the case relative to this money. It is deemed unnecessary to examine it with a view to show how much of it is admissible, and the weight to which each portion of it is entitled, whether taken by itself, or in connection with the residue of the testimony. This being a proceeding in the orphans court, exceptions to the testimony deemed to be inadmissible, are not required. A judge must have a wonderful degree of confidence in his own judgment, and in [*55] his skill, in arriving at the truth, if, of the correctness of the conclusion to which he is brought by the examination of this testimony, he could feel quite sure- Can we pronounce this to have been a loan of so much money by Pattison to Stewart 9 We think not. Stewart himself denies it, and a number of witnesses say that they have heard Pattison declare that he had given the money to his son-in-law. Others, to be sure, say that he spoke of it to them as a loan. But these latter declarations, when admissible, are not entitled to all the weight which is due to declarations by him, that it was a gift.. Some of the witnesses say he stated that he let him have $2,000— a very equivocal phraze—the meaning of the person who uses it is very often mistaken by those who hear it. if Pattison intended to lend this money, he could not have been the prudent man that his neighbours and acquaintances always thought him to be. If it was intended as a gift, neither of the parties wanted any proof thereof. If it was a loan, how could it happen that the deceased did not (actually would not.,) furnish himself with any proof of it? Bo who claims to be a creditor, must take care to furnish himself with legal evidence of the contract which makes him such. The law will not help him by any of its presumptions. The authorities tell us, that if a man claims to have lent money to another, something more is necessary than to prove that the plaintiff delivered money to the defendant, and that this prima facie is only proof of payment; and in Heck vs. Keates, 4 B. & C., 71, it was said, that if money is delivered by a parent to a child, it will be presumed to be an advancement or gift.
This evidently was not a transaction between a money lender, seeking a profitable, investment of his money, and one anxious to borrow. There is satisfactory proof that Stewart was to be furnished with this money, not to be expended as he pleased, but because his father-in-law felt an abiding conviction that if he furnished this money, one object which he anxiously desired to accomplish, the society, perhaps the tender cares and attention of a favorite daughter, in his declining years, would be accomplished. Who can examine this testimony and say, that [*56] this money could have been obtained by Stewart, even although he had promised to pay legal interest for it, provided it was not designed to assist him in purchasing the farm, which seemed to derive very much of its value from the circumstances that it was very near that of Pattison, and moreover, if purchased, was to be the future home of his own daughter? Who ever heard of a money lender so little disposed, nay, so unwilling to have his debt secured, or, indeed, evidence of his debt? To be sure it would appear, from some of the witnesses, that he supposed that it was yet in his power, if he chose, to make of this advance a loan, and was sometimes more disposed than at others, so to consider it; but although he could, with great ease, have obtained evidence of the loan, if he intended that it should be a loan, yet he never could prevail upon himself to ask, or consent to receive a bond, or other evidence of a debt, and never, until his death, is the money demanded as so much lent to the son-in-law. Such a claim, set up at so late a period, not by the party himself, but by those who had not his knowledge of the transaction, if sustained at all, must be sustained by stringent proof. Where is it? Or, what proof is there that the supposed borrower received the money as so much money lent to him ?
It would be difficult, too, to infer, from the proof, that this was intended as an advancement, that this is to be regarded as money given to a child, with a view to a portion or settlement. This inquiry, however, would only be necessary if there had been an actual or total intestacy. But see the authorities collected in 4th Dessassure 291, 3 Ba. Abt., title Executors and Administrators (edition in 1813,) Letter K., p. 77, and also Deputy Commissary's Guide, p. 117.
To several of his children the testator gave legacies, adding thereto the words, “ and no more of my estate.” Are those children to be excluded from a share of the fund now to be distributed? We think not. Any portion of his personal estate of which the testator himself does not dispose, is to be distributed according to law; and it is nowhere provided in the law, that personal estate of an intestate is to be distributed among [*57] some of the children, to the exclusion of others. The law permits individuals, capable of making a will, every privilege in regard to the disposition of their property, which can reasonably be asked. It takes upon itself to dispose of no part of the testator’s estate, save only so much thereof, as he himself leaves undisposed of; and how it will dispose of this part of his estate, it makes known to him in its statute of distributions. An individual, then, having property, may, at his death, leave the whole of it undisposed of, or he may dispose of a part of it, dying intestate as to the rest, or he may dispose of everything belonging to him by a residuary clause. His will, as far as it is properly expressed, is the law touching the disposition of his property. A man is to dispose of his property by saying expressly, or by necessary implication, to whom it shall go, not by declaring to whom it shall not go; by declaring who shall be the objects of his bounty, notwithstanding the statute of distributions. The testator gives to some of his children so much (adding,) “and no more;” and is not this the effect of every bequest? The legatees claim the thing bequeathed, but no more. It is impossible, it would seem, to exclude some of the children because of the words “no more,” if the testator really did die intestate, in regard to the fund now for distribution. It is said that the testator’s will is to be gratified. This is true, when it is consistent with the law. But, the law will not sanction a disposition in this mode. The authorities last cited, forbid us to give to the words “,no more” such an effect. But, according to one of the arguments which have been urged, this is no case of intestacy at all. The rest of the children will take this fund under the will; the words “ no more,” used in reference to some of the children, give, by implication, this undisposed of fund to the others. We do not think that this is a reasonable or safe construction of wills, in this respect, like this. In the first place, a bequest to the other children is a bequest expressly of so much, and impliedly of no more to them. In the next place, the law does not conclude, that because a man has determined to disinherit one child, he means that ail the rest should be his residuary lega> [*58] tees. This act of disinheriting a child, (leaving him or her, so far as it depends upon his or her father, utterly destitute,) is one which the law cannot regard very favorably. If the will be so explicit that it must be so, let it be so; but if it must be done, it must, because the testator has expressly declared it; not because he may, as well as may not, have intended it. It may be that he used those words in the expectation that a child’s share of the undisposed residue would be, in his opinion, a sufficient provision for that child, and simply for that reason, gave to such child no more by will. If such was the necessary effect of annexing the words “no more” to a devise or bequest, then all the children might be disinherited, unless there chanced to be one of them who was unnoticed altogether in the will. These words may be rejected as surplussage, a process not usual in construing wills. They evidence an intent, but a mere intention will not defeat these children. 2nd Story’s Equity, sect. 1065, (a) 4th edition.
The order of the orphans court excludes Jeremiah L. Pattison from any share of the fund to be distributed, and this, because, in the opinion of the court, a conveyance of a tract of land to him, by the deceased, was an advancement to him, and greater in value than a share. In this there is error. The fund in the hands of the executors, and to be distributed by the court, consists entirely of personal estate. With the real estate of the deceased, when and how the deceased has disposed of that estate to his children, the orphans court has no concern. As one of the children of the deceased, he claims a child’s portion of the personal estate, and even if there had been a total intestacy, it is by no law made the duty of the orphans court to ascertain what portion of the real estate he received. In a different form, and in a different forum, controversies in regard to the real estate, must be settled.
This court is of opinion that Ann Elizabeth and Margaret W. Pattison are not entitled, either of them, to the sum of fifteen hundred dollars, to be paid out of the personal assets now to be distributed. If payable at all, it must be claimed of the devisee, who, by the will, is required to pay it. Accord [*59] ing to the opinion we have just expressed, the supposed deed to Jeremiah L. Pattison is not properly before us, and it is not for us to decide whether he claims the land under the will, or under a valid conveyance, which secured the estate to him before the will took effect. If the the latter, we need not remark that the deceased could not, by his will, charge this land with the payment of $3,000, and certainly he has not made his personal estate answerable for it.
In the appeal by Stewart and wife, the order of the court is reversed, and also that portion of it from which Jeremiah L. Pattison appeals. In the appeal by Steioart and wife, Birleley and wife, and others, order affirmed; and in the appeal by Fooks and wife, and Miss Pattison, the order is affirmed. The costs in both courts to be paid out of the assets of the estate.
ORDER REVERSED IN PART, AND
AFFIRMED IN PART.