#### Charles Whitman, Appellant from a Decree of the Judge of Probate, *versus*Benjamin Hapgood and Others.

The statute of 1805, c. 90, after prescribing what shall be evidence of an advancement to a child or grandchild, repeals all prior acts falling within its purview ; but it was holden that a deed made prior to that statute, and which, by the existing laws, would have been evidence of an advancement, should have that effect, the repealing clause notwithstanding, although the grantor died after the statute was in operation.

The decree appealed from in this case was made for the distribution of the real property of the father of the appellant, *Charles Whitman,*deceased, among his heirs. The deceased died intestate after the 1st day of July, 1806, having, on the 5th day of May, 1798, made and executed a deed, whereby, *in consideration of the love and affection*he bore to his son, *C. W.,*the present appellant, and his *desire to see him comfortably settled in the world,*he conveys to his said son certain lands, with covenants of general warranty. And the question in the case was, whether this should be taken to be an advancement to the son, the judge of probate having decided that it was to be so taken and considered.

[By the statute of 1783, c. 36, § 7, it is enacted “that any deed of lands or tenements made for love and affection, or where any personal estate delivered a child shall be charged in writing, *433&e., the same shall be deemed and taken an advancement to such child, to the value of such lands, tenements, or personal estate, within the intent of this act.”]

[By the statute of 1805, c. 90, § 3, it is enacted “ that all gifts or grants made by the intestate, to any child or grandchild, of any estate, real or personal, in advancement of the portion of such child, &c., and which shall be expressed in * such [ * 438 ] gift or grant, or otherwise charged by the intestate in writing, or acknowledged in writing by the child or grandchild, as made for such advancement, such estate, real and personal, shall be taken and estimated in the distribution and partition of the intestate’s real and personal estate, as part of the same; and the estate so advanced shall be taken by such child or grandchild, towards his share of the intestate’s estate.”]

[By the last section of this statute, it is provided “ that this act shall be in force from and after the 1st day of July next, [1806;] and from and after that day all acts and parts of acts heretofore passed, so far as they come within the purview of this act, shall cease, and have no further effect, excepting as to the estates of such persons who shall die before this act shall be in force.”]

*Hosmer*and *Hoare,*for the appellant,

contended that the lands conveyed by the deed in question were not to be taken as an advancement to the grantee, because the intestate died since the latter statute came into operation; and it is not expressed in the grant, nor was it charged in writing by the intestate, nor acknowledged in writing by the appellant, as made by way of advancement. The former statute having been repealed before the intestate’s death, the expressions used in the deed, which, by force of that statute, would constitute this gift an advancement, had no such operation in this case. The repeal of the first statute is tantamount to enacting that a deed for love and affection shall not be taken as an advancement. The appellant can produce satisfactory evidence to prove that the intestate did not intend this as an advancement to his son, if the Court should think such evidence admissible, to aid in the construction of the deed. (1)

*Hilliard*for the respondents.

The cause stood continued *nisi*for advisement, and at the next March term in *Suffolk*judgment was pronounced for the respondents.

(1)

1 *Mass. Rep.*527, *Scott*vs. *Scott.*

Jackson, J.

There is no doubt that the conveyance, on which the question in this case arises, would have been deemed * an advancement according to the statute in force at [ * 439 ] the time when the deed was made. The terms of the *434deed are within the letter, and according to the obvious meaning, of the statute of 1783, c. 36, <§> 7, which determines what shall be considered advancing a child by settlement in the lifetime of the parent. If, then, the intestate had died before the 1st day of July, 1906, there could have been no doubt in the case. By,the sixth section of the statute of 1805, c. 90, it is enacted that that act shall be in force from and after the 1st day of July then next; after which day all acts and parts of acts before passed, so far. as they come within the purview of that act, shall cease, and have no further effect, excepting as to the estates of persons who shall die before that act shall be in force. We have now to decide whether this general repealing clause destroys the effect of a settlement, previously made by the intestate as to a part of his estate, according to the provisions of the statute in force when the settlement was made.

Many rules have been established to aid and guide the discretion of courts in the construction of statutes, the object of all which is to ascertain the true intent and meaning of the legislature. For when that meaning is clearly expressed, or is satisfactorily ascertained, the only duty of the Court is to execute the law accordingly, if it be not inconsistent with the provisions of the constitution.

It is a general rule, applicable to all laws, that, generally, they are to be considered as prospective, and not to prejudice or affect the past transactions of the subject. *Nova constitutio futuris formam imponere debet, non prceteritis.*(2) It is not intended, by this rule, that the legislature cannot, in some cases, make laws with a retrospective operation. Laws for the limitation of actions are frequently of that description. But this effect is not to be given to a statute, unless such intention is manifestly expressed; especially if it tends to produce injustice or inconvenience.

The statute of 1805 was made to regulate the descent [ * 440 ] * and distribution of intestate estates. This is the general object and purview of the act; and, so far as respects this object, all other laws are repealed. In the third section, it is enacted that all gifts or grants, made in a certain manner by the intestate to any child, shall be deemed to be in advancement of such child’s portion. This provision is in its nature prospective. The law could not prescribe a form for conveyances already executed. Whilst the statute regulates the distribution of estates, of which the owner has made no disposition, it is not intended to impair the right, which he before enjoyed, of making any other disposition, by will or other legal instrument, in his lifetime. It may, then, have it» full effect, as to the settlement of all estates that are to be distrib *435uted according to its general provisions, and yet leave in full power a settlement, already made in legal form by the owner, according to his acknowledged rights. The former statute is repealed, so far as respects advancements to be thereafter made: it is to have no effect in the construction of deeds, or other conveyances which *shall*be made for that purpose. But deeds previously made may still be construed according to the laws in force at the time of their execution.

The legal effect of the deed in question, when made, was to bar the appellant *pro tanto*of his portion of his father’s estate. We must take this to be the intent of the grantor, and that it was assented to by the grantee. The statute of 1783, c. 36, is peremptory and conclusive on this point. It enacts that any deed, made by a parent to a child for love and affection, shall be deemed advancement; and we cannot hear any evidence to contradict the deed, or to control or vary this legal construction of the clear and unambiguous expressions it contains. This is not like the case of *Scott*vs. *Scott,*cited in the argument. There, besides the consid eration of love and affection, there was also a consideration of money expressed in the deed, which was held sufficient to open the inquiry as to the nature and extent of the valuable consideration which operated in the conveyance.

* It is not to be supposed the legislature intended, by [ * 441 ] the statute of 1805, to destroy the legal effect and operation of a deed made under the circumstances of that under con sideration, and thus to rescind an agreement fairly executed between parties capable of contracting, and made with all the forms then required by law. The deed was absolute and effectual against the grantor; it contained no condition, nor any power to revoke or rescind it. Will the law, then, give effect to one part of a deed, *viz.,*the conveyance to the appellant, and destroy the.other part, which appears to have been the only equivalent for the conveyance, and the only motive for making it, that is, the deduction *pro tanto*from the portion of the appellant ? We think the words of the statute may be satisfied without giving to them this construction.

There were two modes of settling and distributing the estate of a person deceased—one, *ex institutions legis,*according to the statute of distributions; and the other, *ex provisions hominis,*by will, or other lawful disposition thereof by the deceased in his lifetime. The new law made some change in the first mode; but where the party had already made such lawful disposition of his estate, in whole or in part, the case must have been considered as not within the new statute ; which could not have been intended to defeat o» disturb any lawful settlement already made.

*436In giving a construction to a new statute, we are not to expect much aid from adjudged cases. There are some, however, which strongly corroborate the opinion we have now expressed. In the case of *Helmore*vs. *Shuter,*(3) the testator had promised, by parole, without any note or memorandum in writing, in consideration of marriage, to pay in his lifetime, or to leave by his will, 2000Z. to the plaintiff. The promise was made in February, 1676, and the testator died in August, 1677. In the mean time, the statute of 29 *Car.*2, c. 3, was made, by which it is enacted that, from and after the 24th day of June, 1677, no action shall be brought, whereby to charge any person upon any agreement in consideration [ * 442 ] of marriage, unless some note or memorandum * thereof be in writing, signed by the party, &c. And it was adjudged that the statute did not annul this promise, nor defeat the action; although, in this case, there was no breach, and, of consequence, no cause of action, until after the statute came into operation.

In the argument of the case cited, it was said that the judges had recently expressedmn opinion as to another part of the same stat ute, which requires a devise of land to be by will in writing attested, and subscribed by three witnesses. A will was made before the statute, without being attested by three witnesses, and the testator died after the statute; yet the will was held good. This same case is reported in 2 *Mod. Rep.*310, under the name of *Gilmore*vs. *Shooter,*where this construction of the statute, as to a will, is attributed to the Court, in giving the reasons of their opinion in the principal case, instead of being merely stated by the counsel in their argument.

There are also two modern cases, which have a strong analogy to the present, and tend to confirm the opinion we have formed. They are the cases of *Couch*vs. *Jeffries,*(4) and *Williams*vs. *Pritchard.*(5)

We are, therefore, all satisfied that the deed made to the appellant, in the case at bar, must be considered in advancement of his portion of his father’s estate; and that the decree of the judge of probate must be affirmed, *(a)*

*Decree affirmed, with costs for the respondents.*

ADDITIONAL NOTE.

[See *Paine*vs. Parsons, 14 *Pick.*318. — *Hawley*vs. *James,*5 *Paige,*318. — *Powel*vs. Powell, 5 Dana. 169.

*437If a parent purchase land in his son’s name, it is *primd facie*an advancement, and rebuts the presumption of a resulting trust for the father. — *Phillips*vs. Gregg, 10 Watts, 158.

.In *Tennessee,*if a parent purchase property from a third person, and procure the conveyance to be made directly to his child; it is an advancement. — *Haywood*vs. Moore, *2 Humph.*588.

A child, advanced by his parent, can claim an equal share with other children, by throwing his share into hotchpot, only in case of *intestacy.—Newman*vs. *Wilbourne)*1 Hill, (Ch.) 10 — See *Sturdevant*vs. Goodrich, 3 *Yerg.*95.

If the will directs that each child shall be charged with what the testator has given him or charged on his book, such charges may be shown to be false or excessive. — *Hoak*vs. Hoak, 5 Watts, 80. — See Musselman, &c. 5 Watts, 9.

See *Earnest*vs. Earnest, 5 Rawle, 213. — *Porter*vs. Collins, 7 *Conn.*1. — *State*vs. Jameson, 3 *Gill & J.*442. — *Hopkirk*vs. Randolph, 2 *Brock.*132.— *Goodell*vs. Taylor, Wright, 82.— *Clark*vs. Warner, 6 *Conn.*356.

*Haverstock*vs. *Sarbach,*1 *Watts Serg.*390. — F. H.]

(2)

 2 *Inst.*292.

(3)

 2 *Show.*16.

(4)

 4 *Burr.*2460.

(5)

 4 *D. & E.*2.

(a)

*[Somerset vs. Dighton,*12 *Mass. Rep. 383.— Medford*vs. Learned, 16 *Mass. Rep.*215.— *Dash.*vs. *Van Kleek,*7 *Johns. Rep.*177. — *Society for Propagating the Gospel*vs. Wheeler, 2 *Gal.*105. — Ed.]