#### Sickler’s Appeal. [Sickler’s Estate.]

On the distribution of a balance in the hands of administrators, a note, signed by decedent’s son and barred by the statute of limitations, was presented. The administrators claimed that it was an advancement. The son testified that, when he made the last payment, his father said he need not pay any more. .The father, however, retained possession of the note. The administrators testified that the son had said, when the note was presented to him, that his father said he need not pay any more till the day of settling of his account when it should “come in as his heirship.” There was also evidence that the father had said afterwards, and after the bar of the statute, but not in the son’s presence, or communicated to him, that he held a note against his son and that he had paid it, all but a little. The auditor found, as a fact, that the debt was converted into an advancement. The court below dismissed exceptions to this finding of facts by the auditor. Held., that, as the evidence was sufficient to support the finding, the judgment should be affirmed.

February 25, 1889.

Appeal, No. 351, Jan. T. 1888, from a decree of the O. C. of Wyoming Co., overruling exception to the report of an auditor, distributing funds in the hands of the Administrators of Benjamin Sickler, deceased. Williams and McCollum, JJ., absent.

The following facts appeared from the report of the auditor, B. W. Lewis, Esq.:

*24“Benj. Sickler died Jan. 3, 1886, intestate, leaving, to survive him, a widow and nine children.

“ On the first day of April, 1873, Benjamin Sickler took a judgment note from his son, Charles Sickler, for $1900.00, payable in installments of $500 annually, without interest. This note was given as purchase money for a piece of land sold by the father to the son. Charles Sickler made payments upon this note as follows : March 30, 1874, $300.00; April 1st, 1875, $400.00; July 1st, 1875, $100.00; April 1st, 1876, $300.00;" April 2nd, 1877, $100.00; Jan. 1st, 1878, $150.00. In all he paid $1350.00 thereon. Each of these payments are endorsed upon the note, signed by Benjamin Sickler. No payments were made after Jan. 1st, 1878.

“ After the death of Benjamin Sickler, this note, with two other smaller notes given by Charles Sickler to his father, was found by the administrators in the same drawer which contained the other notes and evidences of debts due the decedent. Some time after his father’s death, Edward Sickler, the administrator, in the presence of E. R. Hallock, presented these notes to Charles Sickler, who made no objections to the two smaller notes, and afterwards paid them, but said he would not pay the note in controversy till he had to.

“ Edward Sickler says: ‘ I think I can give the exact words of Charles Sickler in this conversation, pretty near. He says, “ That is good, haint it?” I told him I did not know; I suppose he did. He says, “ I know what Pap said when I made the last payment. He says that takes me out of debt, and you need not pay any more on it till it comes on your heirship in the day of reckoning up.” That was all, as I recollect it.’

“ Eli R. Hallock testified as follows: ‘ It was the 26th of January, 1886. We met Charles Sickler there in the road. Charles asked him [Edward Sickler] if he had them notes with him. Ed. took them out and handed them to him, one at a time. Then he took it and as I supposed took the dates and handed them back, the two first. When he came to the big note, Charles asked him if it was good for anything or something to that effect, and Ed. said that he ought to know, and Charles said that his father told him when Charles made the last payment on the note, that put him [i. e. his father] out of debt and he needn’t pay any more on it till the day of settling up his account, then it should come in as his heirship, or words to that effect. Charlie said he shouldn’t pay no more on it till he had to, and I think that was about all the conversation they had.’

“ Charles Sickler testified as follows: ‘ I heard the testimony of Edward Sickler. There was no such conversation passed between us as he testified to at that time. I was going to the mill one morning. I met him and Mr. Hallock. I stopped and asked him if he had those notes. He said that he had. I asked him to see them. He said he did not know whether he ought to let me see them or *25not. Finally he got out of the sleigh and took them out one by one, three of them. He handed me the smaller ones first. I took a memorandum of them and handed them back to him. When he handed me this note in controversy, he says, I might as well throw this away, or words to that effect, and I said I did not know. After I took a memorandum of them Mr. Hallock asked me something concerning the payment of the note. I told him that when I made the last payment pap said that was the last I ever need pay. He wanted to know if I couldn’t just as well pay it now, and I made him no answer/

“ On Jan. 30, x 886, the administrators caused judgment to be entered on this note against Chas. Sickler, in the Common Pleas of Wyoming county, to No. 57 April Term, 1886, for $944.12. In April following, a rule to show cause why the judgment should not be stricken off was obtained by Chas. Sickler [2 Pa. C. C. R. 313]. Afterwards, and before that rule was disposed of, the administrators obtained a rule to show cause why they should not be permitted to strike off the j udgment and withdraw the note from the files, which rule was made absolute by the court on Feb. 7, 1887.

“ Some testimony was introduced to show that Charles was a favorite son of the decedent, had remained on the farm working for his father two or three years after he became of age, and that his father had spoken of recompensing him, and that he was going to ‘ fix his business.’

“ From the testimony of Edward Sickler and E. R. Hallock, it is claimed that the balance of the note, due at the date of the last payment, Jan. 1, 1878, was converted into an advancement; that Benjamin Sickler then proposed that, as he was out of debt', the balance should remain as it then stood, until the settlement of his estate, when it should be applied on his share in the estate; that this was acquiesced in by Charles Sickler, to whom the father communicated his intention, by making no further payments, and by his setting up his father’s declaration on the subject when first called upon for payment of the balance.

“ It was claimed, on behalf of Charles 'Sickler, that the balance due on this note was a gift to him by his father, or, if not a gift, then it remained as a debt; that, even if the conversation testified to by Edward Sickler and Hallock took place, it merely indicated an intention then on the part of Benjamin Sickler to change the debt into an advancement, which was not agreed to by Charles Sickler, and, no agreement being consummated, Benjamin Sickler retained the note, and its character as a debt remained unchanged, and it continued a debt in his hands until its collection was barred by the statute of limitations.

“ The evidence that it was a gift rests on the unsupported testimony of Charles Sickler himself, and is opposed by the fact that the note was not only not delivered up nor endqrsed ‘ paid ’ by Benjamin Sickler, but that, during the nine years that it remained in his *26father’s hands, after the last payment was made, Charles Sickler never asked or demanded that the note be delivered up to him. The question for determination, then, is, was this debt on Jan. I, 1878, changed to an advancement. That a debt due from a son to a father may be changed to an advancement is well settled by such authorities as Haverstock *v.*Sarbach, 1 W. & S. 390-; Miller’s Ap., 40 Pa. 57; Merkel’s Ap., 89-Pa. 340; Kirby’s Ap., 109 Pa. 41.

“ -Is the evidence sufficient in this case to amount to an agreement between the father and son to change the existing debt to an advancement ?

“ It is evident, from the testimony in the case, that some change was made with regard to this debt by the parties thereto, on or about Jan. 1', 1878, for, before that time, the son had made payments thereon with promptness and regularity. After that time, the payments ceased, and the subject seems never to have been mentioned by either father or son during the father’s lifetime, although they lived but a short distance apart, and their relations were intimate and pleasant. We can hardly suppose, from the circumstances, that a gift was made, because the father retained the evidence of debt, with no syllable of dissent from the son.

“ Did the debt still exist ? The retention of the note, among his other evidences of debts due him, by the father, would, in the absence of opposing evidence, strongly support the claim that it was held by him as á debt against his son. But, in this case, the testimony of two witnesses, as to the declarations of Charles Sickler when first confronted with this note 'after his father’s death, showed that he then set up the claim that his father had told him when he made the last payment that, as that payment would take him out of debt, he need not pay any more on it till it came in his heirship in the day of reckoning up.’ True, this testimony is somewhat removed from its original source, but it comes through the mouth of one of the parties to the transaction, and is a part of the res gestae, and accompanies the acts done. Is this view consistent with what took place afterwards ? It is evident, from the whole facts in the case, that a change was made in this debt at the time mentioned. The evidence is insufficient to warrant us in saying that it was changed to a gift. What then ? Does the subsequent action of the parties corroborate the theory that it was changed to an advancement? We think the facts are not only consistent with this theory, but corroborate it. The son; after that time, neither pays nor promises to pay any more money on the note, and the father asks for none. They are both silent as they would naturally be if it had been agreed upon between them that the balance due on this note should stand until the father’s death, and then be applied upon the son’s share in his estate.

“ It is contended that an advancement is a ‘ gift irrevocable,’ and that the father, by holding this note, had it in his power at any time to revoke the gift and collect the note. I find that in Merkel’s *27Appeal and Kirby’s Appeal, where it was held that the debt had been changed to an advancement, the father held the notes during his lifetime. All authorities hold that advancement is a question of intention; and if the intention can be shown as part of the res gestae, accompanying the acts done, the theory of advancement will prevail.

“ In this case, the father’s intention to make this an advancement was communicated to the son, who makes no objection and governs himself accordingly, and that intention is shown to be continued from year to year by his making no demand, until, by lapse of time, it is out of his power to make the gift by way of advancement revocable, the note having been barred by the statute of limitations some two years before his death.

“ In the case of Kirby’s ■ Appeal, the only evidence of the father’s intention to make the debt an advancement was his declaration, written in a small account book, the leaf of which he might at any time have torn out and destroyed, if he had desired to have revoked it, and yet the debt in that case was held to have been changed to an advancement.'

“ None of the later cases go so far as to hold that to make a debt an advancement the father must put it out of his power to collect the debt. The true doctrine held by the cases on this subject seems to me to be this: That if the father communicates to the son his intention to convert a debt due by him into an advancement, and does not, during his lifetime, revoke that intention, the theory of advancement will prevail. The note in such cases is usually retained as evidence of a transaction between the father and son.

“Testimony of Earl Sickler was offered to show that Benjamin Sickler, four or five months before his death, stated that ‘ he held a large note against Charles, and that Charles had paid it up all but a little.’ But as this was subsequent to the change made and communicated to Charles by his father, on or after Jan. 1, 1878, and as it was not in Charles’s presence, nor communicated to him, .it was clearly insufficient to change its character back to a debt, and incompetent, more especially as the bar of the statute of limitations had already intervened. See Harris’s Ap., 2 Grant, 304; also, Frey *v.*Heydt, 20 W. N. C. 196; s. c. 116 Pa. 601.

“ Taking into account all the facts and evidence in the case, I find that the preponderance of testimony goes to show that Benjamin Sickler intended that the balance of this debt, amounting, on Jan. 1, 1878, to $635.50, should be changed into an advancement; that he communicated this intention to his son, Charles Sickler, and that it was acquiesced in by him.

“The auditor^ therefore, in this distribution will regard the $635.50 due on this note Jan. 1, 1878, as an advancement to come out of his share in the distribution of the fund in the administrators’ hands.”

*28The petition to open the judgment entered by the administrators was given in evidence in this case by the appellant and contained the following averments:

“ The said note, at the time of the entry* of judgment, was the property of your deponent; the said Benjamin Sickler in his lifetime, to wit: Jan. 1st, 1878, had discharged your deponent from the payment of the said note, or the balance thereof, cancelled the same, and gave it to your deponent forever thereafter discharged from the payment thereof.”

Counsel for Charles Sickler requested the auditor to find, inter alia, the following facts:

“ 2nd. That this note, uncancelled and unmarked, in the same condition as when given, save payments endorsed thereon, with two other smaller notes against Chas. Sickler, was found, at the death of deceased, in a drawer, among the other evidences of debt and notes due deceased, where deceased usually deposited such papers; that the two small notes were paid by him to the administrators; that the deceased treated this note as an evidence of debt by keeping it in the same place of deposit as the two smaller notes against Charles and with his other notes against other debtors.

[“ That, four or five months before Benj. Sickler died, in a conversation between him and Earl Sickler about business matters, debts, etc., and about how Charles was getting along, Benj. Sickler said that Charles had paid up the note he gave him for the land he sold him, all but a little.”] [3]

“ That, five months before the decease of Benj. Sickler, he declared this note, then in his possession, to be a debt against Charles and nota gift nor an advancement; that Charles was the favorite son of deceased and did more for the deceased than the rest of his family, and that he intended to reward and ‘ recompense ’ him for the three years’ work rendered his father after he became of age. That the deceased did apply this work as a payment upon this note after the last cash payment by Charles, saying, five months before his death, ‘ it is all paid but a little.’ ”

“ 4th. [That Charles Sickler did not admit that this note, or any part of it, should come out of his share of his father’s estate. That there is no admission of Charles Sickler that it was agreed between him and his father that the balance should come out of his share in his father’s estate. [6]

“ 5th. [That Benjamin Sickler at no time surrendered his power or control over this note, nor obliterated the obligation thereon as a debt.”] [7] _

_ The auditor was also requested to affirm, inter alia, the following propositions of law :

“ 4. An advancement is an irrevocable gift, and if Benj. Sickler at one time did intend to treat the balance of the note as an advancement, he still retained the power of recalling it and control *29over the note, and hence it cannot be treated as an advancement to Charles.” [9]

“ 6. The evidence, to change this debt to an advancement, must be such as would release Charles Sickler from all obligation upon the note as such, and such as would defeat a recovery upon the note, in a suit against him, by setting up the matter of release. [10]

“7. No release of Charles Sickler from his obligation upon this note has been shown. The bar of the statute of limitations does not operate as a release. [11]

“ 8. There is no evidence sufficient to warrant the finding that there was an agreement or contract between Benj. Sickler and his son Charles that any part of this note should be treated as an advancement. [12]

“ 11. The burden of proof is upon those who allege this note to be an advancement; and the preponderance of the evidence in this case is against those who allege an advancement.” [13]

To these requests the auditor filed the following answers:

“ The 2d point, as far as it relates to the facts, is affirmed. [The testimony of Earl Sickler, as to the point referred to, I have held to be incompetent.] [3] The conclusions and inferences drawn from the facts as stated are not affirmed.”

[“ The 4th point is not affirmed. While there is no direct admission by Charles, yet his setting up the claim of advancement when first called upon to pay the note and the conduct of both Charles and his father with regard to the note, lead strongly to the conclusion that it was so agreed upon by them.] [6]

[“As to the 5th point: I find that Benjamin Sickler held the note during his lifetime, as an evidence of an advancement.] [7]

“ The 4th point of law, in view of the later decisions, is not affirmed. [9] The 6th point is not affirmed. See Kirby’s Appeal. [10]

“ The 7th point is affirmed with this modification, except that indicated by the father’s allowing the bar of the statute of limitations to intervene during his lifetime, thus making his intention of January 1st, 1878, to become irrevocable; and, from the later cases I hardly think a release is necessary. [11]

“The 8th point is not affirmed. [12] The nth point is not affirmed.” [13]

Exceptions were filed on behalf of Charles Sickler, averring that “ the auditor erred, 1, in holding that the judgment note, dated April 1st, 1873, was converted into an advancement [1]; 2, in charging $>635.50 of this note to the share of Charles Sickler in this estate [2] ; 3, in holding that the testimony of Earl Sickler was incompetent [3] ; 4, in not finding the facts testified to and proven by Earl Sickler and by David Walters [4]; 5, in finding that this note was not mentioned by Benj. Sickler during his life, after Jan. 1st, 1878 [5]; in not finding the facts as prayed for in the 2d, 3d, 4th [6] and 5th [7] requests by Charles Sickler, and [in finding that this *30note was held by Benj. Sickler as an evidence of advancement] [8] ; 9, in not affirming the 4th [9], 6th [10], 7th [x 1], 8th [12], 9th, 10th, nth [13] and 12th points of law as requested by Chas. Sickler.”

The court overruled the exceptions, filing, inter alia, the following opinion, by Sittser, P. J.: “The auditor treated the balance due upon the note as an advancement made by Benj. Sickler to Chas. Sickler at the time of the last payment, viz., Jan. 1,1878, and deducted it from his share. This finding of fact by the auditor cannot be reversed by us except for clear error. Upon consideration of the evidence, we agree with the auditor. It is clear, from all the testimony in the case, that, at the time of the $150 payment, on Jan. 1, 1878, the character of this obligation was changed. Chas. S. Sickler contended that at that time his father gave him the balance and the other heirs contended that it was turned into an advancement. We are very clear that the evidence indicates an advancement rather than a gift, and the report of the auditor is confirmed.” [m]

*The assignments of error*specified the action of the court, 1 and 2, in overruling the 1st and 2d exceptions to the auditor’s report, quoting them; 3, in overruling the 3d exception, quoting the exception and the second paragraph of the 2d request to find facts and the ruling thereon, as indicated by brackets; 4, in overruling the 4th exception, quoting it and also the material portions of the testimony; S, in overruling the 5th exception, quoting it; 6, 7 and 8, in overruling the 8th exception, quoting the exceptions and rulings as indicated by brackets; 9, 10, 11, 12 and 13, in refusing to affirm the 4th, 6th, 7th, 8th and nth points of law, quoting them as above; and, 14, in confirming the auditor’s report, in holding as in the opinion of the court, quoting it.

*C. 0. Dersheimer,*of *Ross & Dersheimer,*for appellant.

Questions of advancement depend upon the intention of the parent, when the property is received by the child. Miller’s Ap., 40 Pa. 57; Merkel’s Ap., 89 Pa. 340.

If there was originally a debt, it will continue so, notwithstanding the change of intention on the part of the parent, unless there was an agreement or consent on the part of the son.

An intention, not carried into an act, amounts to nothing. High’s Ap., 21 Pa. 288; Frey *v.*Heydt, n6Pa. 601; Walsh’s Ap., 22 W. N. C. 260. The debt must be absolutely forgiven. Yundt’s Ap., 13 Pa. S 80; Haverstock *v.*Sarbach, 1 W. & S. 390; Wentz *v.*Dehaven, 1 S. & R. 317; Kreider *v.*Boyer, 10 Watts, 54; Scott *v.*Lauman, 104 Pa. 593.

When the father keeps the note, without more, the idea of its change to an advancement is as much repelled as where an obligation for the payment of the amount is taken at the time the money is received by the child from the parent. Roland *v.*Schrack, 29 Pa. 125.

Merkel’s Ap., is distinguishable from the above cases as the ques*31tion there was whether the original transaction was a debt or an advancement, and not the conversion of a debt into an advancement. In Kirby’s Ap., the father released his daughter by a writing as solemn and binding as the note itself.

A gift, inter vivos, is not good where the control of the donor over the subject of the gift continues. Walsh’s Ap., 22 W. N. C. 258; Fross’ Áp., 105 Pa. 267.

Evidence, such' as offered in this case to establish a contract between the father and the son, has been declared to be unsatisfactory and often misapplied. Erie & Wyoming Valley R. R. *v.*Knowles, 117 Pa.-77; Poorman *v.*Kilgpre, 26 Pa. 372; Ackerman *v.*Fisher, 57 Pa. 459; Harbold’s Ex’rs *v.*Kuntz, 16 Pa. 214; Robertson *v.*Robertson,. 9 Watts, 42.

The evidence was not equivalent to the testimony of two witnesses nor of that clear and convincing character as was sufficient to cancel the note and change it to an advancement. Locust Mountain Water Co. *v.*Yorgey, 12 Cent. R. 704; Rowand *v.*Finney, 96 Pa. 196; Spencer *v.*Colt, 89 Pa. 314; McGinity *v.*McGinity, 63 Pa. 38; Phillips *v.*Meily, 106 Pa. 536; Railway Co. *v.*Swank, 14 W. N. C. 444; Meily *v.*Phillips, 16 W. N. C. 429; Heffner *v.*Chambers, 22 W. N. C. 284.

The evidence of Earl Sickler was material and competent as a subsequent recognition of what took place and as explanation of prior declarations. Rearich *v.*Swinehart, 11 Pa. 241; Homiller’s Est., 17 W. N. C. 238; Potts’ Ap., 10 Cent. R. 415; Rearick’s Ex’rs *v.*Rearick, 15 Pa. 66; *Frey-v.*Heydt, supra.

*Harding & Jorden*and *Littles & Terry,*for appellees,

not heard. —The claimant first contended that the father gave him the debt and afterwards that the debt remained and therefore could not be deemed an advancement. Where a man alleges a fact in a court of justice for his advantage, he shall not be allowed to contradict it afterwards. Herman on Estoppel, 11; Maclay’s Lessee *v.*Work, 10 S. & R. 195 ; Wills *v.*Kane, 2 Grant, 60.

Facts found by an auditor and confirmed by the court below, are conclusive. The auditor found that there was a contract wherein the son agreed that the balance due on the note should be regarded as an advancement, and, in consideration therefor, the father forgave the debt. This was a valid agreement. 1 Parson’s Contract, 448; McNish *v.*Reynolds, 95 Pa. 483.

Had the father surrendered the note, it would have been a donation and there would have been nothing to show the advancement. The note was retained in Kirby’s Ap., 109 Pa. 41; Merkel’s Ap., 89 Pa. 340; Skinner’s Ap., 1 Mona. 439.

Kirby’s Ap., is reported better in 2 Ches. Co. 406, where it appears that every point urged by the appellant here was fully argued by the appellant there without avail.

*32March 11, 1889.

The presumption is that a parent means to treat his children equally. Weaver’s Ap., 63 Pa. 311.

What was said and done at the time the transaction of making the balance of the debt an advancement is part of the res gestae and admissible in evidence. King’s Est., 6 Wh. 370; Riddle’s Est., 19 Pa. 433; Merkel’s Ap., 89 Pa. 340; Skinner’s Ap., 1 Mona. 439.

In Skinner’s Ap., the parent’s declaration to the child that the latter was to have the money on account of his interest in the parent’s estate, with the child’s assent thereto, made it an advancement.

The authorities hold that the declarations of -the parent which are admissible are those made at the time, or subsequent acts and declarations in recognition of the original act and intention.

But when rights of the son have intervened, subsequent declarations, contradictory of the original intent, are in the parent’s own favor and therefore not admissible.

Per Curiam,

It ought to be understood by this time that the findings of fact by an auditor, and the approval thereof by the court below, is not to be overturned in this court unless error is clearly shown. The auditor has found that the judgment note dated April 1, 1873, was converted into an advancement. There was some conflict in the testimony from which this conclusion was drawn, but there was enough to sustain it. We entirely agree with the learned judge below where he said: “ It is clear from all the testimony in the case that, at the time of the $150 payment on the first of January, 1878, the character of this obligation was changed. Charles S. Sickler contended at that time his father gave him the balance, and the other heirs contended that it was turned into an advancement. We are very clear that the evidence indicates an advancement rather than a gift, and the report of the auditor is confirmed.” To overcome this, it must appear there was not sufficient evidence to justify this finding; to show us there was a conflict of evidence is a mere waste of time.

The decree is affirmed and the appeal dismissed at the costs of the appellant. W. M. S., Jr.