CASES ADJUDGED IN THE COURT OF ERRORS AND APPEALS OF THE STATE OF NEW JERSEY, ON APPEAL FROM THE COURT OF CHANCERY, NOVEMBER TERM, 1893. THOMAS S. HATTERSLEY et al., appellants, V. EDWARD P. BISSETT et ux. et al., respondents. THOMAS S. HATTERSLEY et al., appellants, v. JANE ALICE BISSETT and EDWARD P. BISSETT, respondents. 1. A conveyance of land by a parent to one of his children for a consideration named therein, of natural love and affection, or for a nominal consideration, is presumptively an advancement within the meaning of the proviso in the first section of the act regulating the descent of lands. Rev. p. 297. 2. Proof that a conveyance by a father to his daughter, by a deed expressed to be for the consideration of one dollar and natural love and affection, was, [597] Hattersley v. Bissett. in fact, made as compensation for services actually rendered by the daughter in remaining at home, keeping house for him and nursing him for a number of years, overcomes the presumption that the conveyance was a gift or advancement. 3. The testator, by his will, devised a portion of his real estate to his son and other portions to his daughter. After the execution of his will he conveyed to his daughter part of the real estate he had devised to his son. On bill filed by the son to compel the daughter to elect whether she would take under the deed or under the will-Held, (1) that the conveyance by the testator, after the execution of his will, of the lands devised to the son, operated as a revocation of the devise to the son; and (2) that the daughter was not under an obligation to make an election between the conveyance to her by the deed and the benefits she derived under the will. On appeal from a decree advised by Vice-Chancellor Bird, whose opinion is reported in Hattersley v. Bissett, 5 Dick. Ch. Rep. 577. Mr. John H. Backes, for the appellants. Mr. Woodbridge Strong and Mr. Alan H. Strong, for the respondents. The opinion of the court was delivered by DEPUE, J. Charles Hattersley, the testator, died May 5th, 1890, leaving a will made and executed April 16th, 1884. At the time of making the will the deceased was seized in fee of several parcels of land in East New Brunswick, designated on the map as Plots Nos. 2, 3, 4 and 5, and also three lots in the city of Trenton, viz., No. 129 South Broad street and Nos. 201 and 203 Perry street. By his will the testator devised his property to his four children, as follows: To Elizabeth H. Cherry, No. 129 Broad street, Trenton, in fee, and the westerly part of Block No. 5, in East Brunswick, for life; to Jane A. Hattersley (now Mrs. Bissett), the easterly half of the said Block No. 5 and the remainder in the other part after the death of Mrs. Cherry, in Hattersley v. Bissett. fee; to Thomas S. Hattersley, No. 203 Perry street, Trenton, and Plots Nos. 2, 3 and 4, in East Brunswick, and to Charles M. Hattersley, No. 201 Perry street. By the residuary clause in his will, the testator devised and bequeathed the residue of his estate to his two daughters, Mrs. Cherry and Mrs. Bissett, their heirs and assigns, to be equally divided between them. Mrs. Cherry died May 4th, 1884, in the lifetime of the testator, without issue, and therefore, in the devolution of title under the will, No. 129 Broad street, which had been devised to her in fee, fell into the residue. But inasmuch as, by the residuary clause in the will, the equal one-half part of the residuary estate was given to Mrs. Cherry, by her death in the testator's lifetime, he died intestate with respect to the equal undivided one-half part of the Broad street property, which descended to his three surviving children as his heirs-at-law. By a deed of conveyance duly executed, and acknowledged and delivered by the testator, bearing date October 17th, 1888, he conveyed to Mrs. Bissett, in fee, all the East Brunswick property. This conveyance comprised, in addition to Block No. 5, which Mrs. Bissett took by the will, Blocks Nos. 2, 3 and 4, which, by the will, were devised to Thomas. Mrs. Bissett claims all the East Brunswick property under the deed of conveyance, and one undivided half part of the Broad street property under the residuary clause of the will, and also the undivided one-third part of the other half of the Broad street property, as one of the heirs-at-law of the testator. In this situation of the title of the parties respectively, Thomas S. Hattersley filed in the court of chaucery two bills of complaint, to each of which Mrs. Bissett was made a party. The first of these bills was filed for the partition of No. 129 Broad street, in the city of Trenton, which, by the testator's will, was devised to Mrs. Cherry in fee. The bill as amended charges that the lands conveyed to Mrs. Bissett by the deed made to her by the testator of the date of the 17th of October, 1888, were an advancement and were of greater value than the value of an equal undivided one-half part of the premises whereof the said testator died intestate, and Hattersley v. Bissett. that, by reason thereof, the said Jane A. Bissett is not, as one of the heirs-at-law, entitled to any share in that part of the premises which descended to his heirs-at-law. The deed on its face purports to have been made for the consideration of one dollar and natural love and affection. The first section of the act regulating the descent of lands contains the proviso "that if any such ancestor shall in his lifetime have given or advanced any part of his or her lands, tenements or hereditaments to any of his or her issue, such issue shall not be entitled to any part or share of such ancestor's real estate, descending under or by virtue of this act, unless the real estate so given or advanced shall not be equal in value to the respective shares of the other issue in the same degree of affinity, as the case may be, and then no more than will be sufficient to make such share equal in value to the respective shares of the other issue, in the same degree of consanguinity to the said deceased ancestor." Rev. p. 297. The words in this proviso are "given or advanced." In the statute of distributions the word "advanced" alone is used. Rev. p. 784 § 146; 22 and 23 Car. II. c. 10 § 5. In the law of legacies, a legacy is said to be adeemed by an "advancement." In cases of these aspects "advancement" is a term employed to indicate something given in anticipation of what the beneficiary may succeed to by inheritance, succession or gift at the death of the donor, and is presumptively a satisfaction pro tanto or in the whole of such ulterior benefits. This presumption is liable to be fortified or rebutted by extraneous evidence. 2 Tayl. Ev. § 1227; 2 Rop. Leg. 401, 404; 2 Wms. Ex. 1501, 1504; 2 Lead. Cas. Eq. (6th ed.) 398, 401, 402; Fowkes v. Pasco, L. R. 10 Ch. 343; S. C., Brett Lead. Cas. 248 and notes pp. 250, 251, 252; Lord Chichester v. Coventry, L. R. 2 Eng. & I. App. 71; Tussaud v. Tussaud, 9 Ch. Div. 363, 378; Sims v. Sims, 2 Stock. 158, 163; Peer v. Peer, 3 Stock. 432; Speer v. Speer, 2 McCart. 240, 249; Van Houten v. Post, 6 Stew. Eq. 344, 346, 347. Whether a gift by a testator or intestate in his lifetime to a legatee or distributee is an advancement being a question of intention, must be open to discussion and consideration upon extrinsic evidence. Hattersley v. Bissett. A conveyance of lands by a parent to one of his children for a consideration named therein of natural love and affection, or for a nominal consideration, is an advancement within the meaning of the proviso in the first section of the act regulating the descent of lands, unless a contrary intention be made to appear. Den v. McPeake, 1 Penn. 211; Garden v. Buckelew, 2 Halst. Ch. 94. And although the deed purports to be made for a valuable consideration, the acknowledgment of the receipt of such a consideration is only prima facie evidence and may be rebutted by extrinsic evidence. Speer v. Speer, 1 McCart. 240. The question, as was said by Chancellor Green in Speer v. Speer, is one of intent, and the presumption that the conveyance was by way of a gift or advancement may be overcome by proof. The evidence in this case shows that Mrs. Bissett was born in 1849; her mother died in 1865; and the deceased remained a widower until his death, in 1890, within one month of attaining the age of eighty-four years. It also appears that after Mrs. Bissett returned from school she became housekeeper for her father, with her sister doing the housework and nursing her father. Mrs. Cherry died in May, 1884, shortly after the will was made. From that time Mrs. Bissett was the sole housekeeper. The deed was made in 1888. The evidence is that during the last six years of the testator's life, which would extend back very nearly to the date of the will, he told her that he would remunerate her well for all she had done and was doing for him. The conveyance contained a reservation of a life estate in the testator. The lots, two, three and four, which Mrs. Bissett took under the deed exclusively, were, with other lands of the testator, subject to a mortgage for $6,000, and the conveyance was made expressly subject to the encumbrance of the mortgage. The value of these lots above the mortgage debt which was charged upon them does not appear. It fully appears by the evidence that the testator intended to make Mrs. Bissett compensation for her services; that originally he proposed to do this by a codicil to his will, and that he afterwards resolved to make the deed in place of an alteration of his will, and that he intended that she should have the property con |