#### *J. M. Ison, administrator, and others*vs. *Jacob Ison, and Thomas E. Ison.*

Bill for settlement of an intestate’s estate sought to charge the defendant with a stallion as an advancement: defendant’s answer admitted the gift, and alleged that he had paid his father for the *stallion:*— Held, that defendant’s answer as to the payment, was not evidence for him; and *McGaw*vs. *Blewiti*2 McO. Oh. 101, overruled on this point.

Though a gift for the purpose of pleasure or amusement merely, as of a saddle horse^ a huggy, <&e., is not considered an advancement; yet the gift of a stallion, to be employed as a foal-gettor and for profit, is an advancement.

In ascertaining the amount of an advancement, reference should be had to the description of the chattel at the time of the gift, and the value of a chattel of that description at the death of the intestate: *McGaw*vs. *Blevrity 2*McO. Oh. 103, is, on this point, a leading case.

A distributee is not chargeable, as for an advancement, with tho rent of land which tho intestate had permitted him to occupy.

*Before*JoHNSTON, Ch. *at Union, June,*1852.

This case came up on exceptions to the Commissioner’s report, which is as follows:

“Your Commissioner, to whom it was referred to take into account and to report upon the receipts and expenditures of the administrators, B. W. Lee and J. M. Ison, and also to ascertain the advancements made to the distributees of Frederick Ison, begs leave to report; that the intestate died some time in the Fall of 1845, and the plaintiffs, B. W. Lee and J. M. Ison, shortly thereafter took out letters of administration, and sold the personal estate.

“A few days previous to the death of the intestate, he called all his children around him, and attempted to equalize them by advancements; and on this occasion he, by way of advancement, gave to each one of them one or'more negroes, with the exception of the defendant, Jacob Ison, and charged them according to Exhibit A, in complainants’ bill, with which it is understood they all, with the exception of Jacob, acquiesced at the time, and with which each one, with the same exception, is still willing to be charged.

*16“The bill charges an additional advancement of a stallion, against Thomas E. Ison, or alleges that a recovery of one Smithpeter, on a note (given by the intestate in his lifetime,) against the administrators, was for the purchase money of a stallion which Thomas E. Ison received from the intestate, and which Thomas had promised his father he would pay.

“On this subject there was no proof, except what is contained in his answer, in which he admits that he received the horse from his father as a gift, but says the gift was made to equalize him with the other children, who had all received from their father one or more horses. As to this averment in the answer, there was no proof. But the defendant states further in his answer, that he took the horse, or accepted him, on condition that he was to pay his father for him the amount his father was to pay Smithpeter, which he afterwards did; that he took the horse with this understanding, and promised his father that he would stand him, and that if he could make any thing out of him, he would pay him the amount he was to pay Smithpeter; that he stood the horse from the date of the purchase, in 1832, for several years, and after deducting necessary expenses, and charging nothing for his trouble, he paid the proceeds to the intestate, partly in cash, and partly in notes and accounts, in the whole amounting to $305 31-J-, which is more than he originally undertook to pay — that he subsequently sold the horse for $250.

“ The evidence on this point was from one witness, that he put two or three mares to the horse, and settled for the season with the intestate — that he also owed the defendant, Thomas E. Ison, ten or fifteen dollars for work on a gin, which he also paid to the old man. He proved by another witness, that in 1839 or 1840, the intestate was indebted to the witness, and that Thomas E. Ison paid him fifty or sixty dollars of the debt, or laid down his money on a table, and told his father to take what he wanted, who took the amount stated.

“ Taking the case altogether, the Commissioner is not of the opinion that Thomas E. Ison should be charged with the horse,

*17Exception on the part of Jacob Ison was taken as follows:

Because the report does not charge Abram Ison and John Ison with rent of land on which they have lived and raised their families — the rent of which, as to each, was proved to have been worth thirty or forty dollars a year, and for which they should account, to do justice to the other heirs at law.

The complainants also excepted to the report on the ground,

Because the Commissioner, in making up his report, does not charge Thomas E. Ison with the price of the stallion given to him by the intestate, as he admits in his answer that he received it as a gift, and there is no proof of any payment being made by him for the said horse.

Johnston, Ch. On hearing the report of the Commissioner in this case, the exception filed by the plaintiffs, and the exception filed by the defendant, Jacob Ison, It is ordered that the exception of plaintiffs be sustained; and that the exception of the defendant, Jacob Ison, be overruled.

Thomas E. Ison appealed upon the grounds :

1. Because the answer of the defendant, admitting the advancement, but alleging payment of it, being strictly responsive to the bill, was evidence in his favor, and should have been admitted as such, and the whole taken and construed together.

2. Because his Honor erred, it is respectfully submitted, in holding, that where the defendant charges himself, by his own oath, with a debt, his statements alleging that the same is paid, are not evidence in his favor, but must be supported by testimony independent of his own oath.

3. Because the property charged as an advancement in this case, from its nature and character, cannot rank as an *advancement,*in the sense in which the statute uses the word; not being given “ in anticipation of what he might inherit,” or “ with a view to his settlement in life.”

4. Because there was proof before the Commissioner, that sundry payments had been made by the defendant, Thomas E. Ison, to the intestate; and as there was no evidence or pre-*18tence of any other indebtedness, they should be held and deemed as having been made in payment of this debt; and that upon this point the case should have been re-committed to the Commissioner, to ascertain and report upon the payments made.

5. Because the acts and declarations of the intestate, done and made on the 2d September, 1845, as alleged in complainants’ bill, are conclusive evidence, and amount to an admission by the intestate, that this debt against Thomas E. Ison was paid, as there was no charge raised against him at this time, which point his Honor did not advert to in his decretal order.

Jacob Ison also appealed on the ground:

Because the Chancellor should have sustained his exception.

*Arthur,*for Thomas E. Ison.

*Thomson*and *Jeter,*for Jacob Ison.

T. *N.*and *J. Dawkins,*for plaintiffs.

The opinion of the Coiu't was delivered by

JohnstoN, Ct-i.

The appeal of Thomas E. Ison is founded entirely in misconception.

This defendant, in his answer admits the *gift*of the stallion; and whatever he says afterwards, of payments made for him* was matter in avoidance; and is not proved by the answer,— but must be established by evidence *aliunde.*This is the clear and well established rule on the subject. We have observed, with regret, that of late, a decision in the case of *McCaw*vs. *Blewit*(2 McC. Ch. 101-2,) has been cited by the bar as authority to the contrary. However important and valuable that case may be, on other points, — on this point it is clearly erroneous, and has never been followed ; and we have no hesitation in overruling it.

The question, whether a stallion is an advancement, is one of easy solution, in this case. It is admitted that gifts, or contributions, made by a father to his child, for the purpose of pleasure or amusement merely, are not, in their nature, advancements. A saddle horse, a buggy or like articles, if given with no view to profit, but merely for the gratification of the child, *19do not come -within the idea of having .been bestowed on him <! in anticipation of what he might inherit,” or *“*with a view to his settlement in life.”(a) But the gift of a stallion to be employed, as in this case, as a foal-getter and for profit, — is the gift of a tangible portion of the father’s estate, as so much capital: and, whatever difficulty may exist on this general head of law, in other instances, is certainly an advancement in this case.

Certainly, in ascertaining the amount of this advancement, reference should be had to the description of the horse at the time of the gift, and the value of a horse of that description at the death of the intestate. The rule is laid down in *McCaw*vs. Blewit, (2 McC. Ch. 103-4,) which is the leading case, in this State, upon the subject; and has always been followed in subsequent cases.

The decision of the Chancellor was merely that the stallion was an advancement; not the amount to be charged for him. That is for the Commissioner, on further consideration of the report.

The Court concurs with the Chancellor in refusing to charge certain distributees, whom the intestate had permitted to occupy portions of his land, with rent, as an advancement. Jf they owed him for the rent it was a -debt. If- he charged nothing for the occupancy, (as was the fact,) the permission to occupy was a mere accommodation, and no advancement. An advancement always embraces the idea, that the parent has parted from his title in the subject advanced. But if the intestate, in this instance, had actually given the land, the statute expressly exempts the donee from accountability for the rent: much more are the parties exempt, where the whole matter was simply per-* missive, and the object was mere accommodation.

It is ordered that the decree be affirmed, and the appeal dismissed.

Dunkin, Dargan and Wardlaw, CO., concurred.

*Appeal dismissed.*

(a)

**Vide Bouv. L. Die. Advancements, and *McCaw*vs. *Blewit,*2 McC. Ch. 102-3.