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out the presumed intention of the parent that his children should share equally in his estate. When he makes a will the law conclusively presumes that he expresses his full and final wishes in the matter and the will excludes all consideration of gifts to children during the life of the testator unless they are expressly directed to be deducted.80 The controlling element in determining whether a given transaction between a parent and his child will be considered an advancement, a gift, a loan, or a transfer for valuable consideration, is the intention of the donor at the time of the transaction; evidence establishing which must be drawn largely from the circumstances surrounding the persons interested. The circumstances surrounding a transaction, or the mere gift by a parent to his child, may be such as to create a presumption of advancement on account of the presumption that a parent desires to distribute his estate equally among all his children.81 The doctrine of advancements does not apply where there is a will even though the will directs that the estate shall be distributed as in case of intestacy.82 The doctrine of advancements does not apply to cases of partial intestacy. While the law of "advancements" is applicable only to cases of intestacy a testator may make it applicable to a will by express provision, or he may provide that certain sums advanced to beneficiaries shall be deducted from their shares. Such provisions are controlling and cannot be contradicted. An heir of full age may accept from his ancestor presently as an advancement his full share of the estate of the ancestor, and the probate court may give effect to a receipt given by an heir to his ancestor acknowledging the receipt of a specified sum under an agreement that the same shall be in full for his distributive share out of the estate whatever it may be, and adjudge that the heir is not entitled to any interest in the estate.85 Where a will recites that the testator has made advancements to a certain sum to a child and gives an equal sum to other children to equalize the shares of all, the recital is conclusive, and the court cannot consider evidence to show that the property advanced was not worth the sum at which it was valued by the testator.

80 Kragnes v. Kragnes, 125 Minn. 115, 145 N. W. 785; Kuhne v. Gau, 138 Minn. 34, 163 N. W. 982. See In re Barnes' Estate, 177 Iowa, 122, 158 N. W. 754; 18 C. J. 918.

81 In re Barnes' Estate, 177 Iowa, 122, 158 N. W. 754. See 18 C. J. 917.

82 De Caumont v. Bogert, 36 Hun (N. Y.) 382.

83 Gilmore v. Jenkins, 129 Iowa, 686, 106 N. W. 193; 1 A. & E. Ency. of Law (2 ed.) 763; 18 C. J. 918; 1 R. C. L. 657; 6 Ann. Cas. 1011.

84 In re Bresler's Estate, 155 Mich. 567, 119 N. W. 1104; In re Hayne's Es

83

86

tate, 165 Cal. 568, 133 Pac. 277; Nalle v. Safe Deposit & Trust Co., 120 Md. 187, 87 Atl. 770; Buchanan v. Hunter, 166 Iowa, 663, 148 N. W. 881; Knight's Estate, 253 Pa. St. 290, 98 Atl. 558; Woerner, Am. Law of Adm. (2 ed.) § 553; 1 A. & E. Ency. of Law (2 ed.) 777; 40 Cyc. 1922. See Simpson v. Cook, 24 Minn. 180; Ann. Cas. 1918E, 212 (interest on advancements).

85 Simon v. Simon's Estate, 158 Mich. 256, 122 N. W. 544.

86 Buchanan c. Hunter, 166 Iowa, 663, 148 N. W. 881.

123. Effect of receiving full share-An heir who has received advancements to the full amount of his share of the estate has no interest in the balance.87

124. Writing must be contemporaneous with gift-An advancement can be proved only in the manner prescribed by the statute. A writing by the donor charging a gift as an advancement must be contemporaneous with the gift, or substantially so.

88

125. Evidence-Admissibility-Not provable by oral evidence-An advancement must be expressed in writing. It cannot be proved by oral evidence or inferred from the circumstances of the parties or the subsequent declarations of the parent.89 A certificate, made by a father on the same day of a deed whereby he conveyed valuable property to his son, to the effect that he had made the deed as a portion of his son's patrimony, held admissible to show that the deed was an advancement." 126. Deduction from share-Advancements of personal property are to be deducted from the distributive share of the donee.91

90

127. Hotchpot-Election-Our statute has abolished the common-law rule that one who has received an advancement must bring it into hotchpot if he wishes to claim a portion of the estate of an intestate as an heir. He is not required to make any election in order to share in the estate as his rights are fixed by the statute.92

93

128. Interest-Interest is not chargeable on moneys advanced, unless a will so directs. It has been held that interest should be charged on all advancements after, but not before, the grantor's death.”*

87 Liginger v. Field, 78 Wis. 367, 47 N. W. 613; Courter v. Courter, 283 III. 127, 119 N. E. 63.

88 Arthur v. Arthur, 143 Wis. 126, 126 N. W. 550; Ludington v. Patton, 121 Wis. 649, 99 N. W. 614. See 18 C. J. 919.

89 G. S. 1913, § 7404; Kragnes v. Kragnes, 125 Minn. 115, 145 N. W. 785; Barton v. Rice, 22 Pick. (Mass.) 508; Olney v. Brown, 163 Mich. 125, 128 N. W. 241; Boden v. Mier, 71 Neb. 191, 98 N. W. 701; Lodge v. Fitch, 72 Neb. 652, 101 N. W. 338; Pomeroy v. Pomeroy, 93 Wis. 262, 67 N. W. 430; Schmidt V. Schmidt's Estate, 123 Wis. 295, 101 N. W. 678; Arthur v. Arthur, 143 Wis. 126, 126 N. W. 550; Elliott v. Western Coal &

Mining Co., 243 Ill. 614, 90 N. E. 1104.
See 18 C. J. 936.

90 Power v. Power's Estate, 91 Mich. 587, 52 N. W. 60.

91 Bemis v. Stearns, 16 Mass. 200; McClave v. McClave, 60 Neb. 464, 83 N, W. 668.

92 Burns v. Burns, 87 Kan. 19, 123 Pac. 720; Courter v. Courter, 283 Ill. 127, 119 N. E. 63.

93 Osgood v. Breed's Heirs, 17 Mass. 356; Cummings v. Bramhall, 120 Mass. 552; In re Knight's Estate, 253 Pa. St. 290, 98 Atl. 558. See Ann. Cas. 1912A, 955; Ann. Cas. 1918E, 212; 18 C. J. 931.

94 Sprague v. Moore, 130 Mich. 92, 89 N. W. 712. Sce Ann. Cas. 1912A, 957: 18 C. J. 931.

DETERMINATION OF descent WITHOUT
ADMINISTRATION

129. When authorized-Whenever any person dies leaving real estate, or some interest therein, and no will has been proved nor any administration granted thereon in this state within five years after his death, or real property has been omitted in the administration or in the final decree, any person claiming an interest in such real estate may petition the probate court of the county wherein the same or any part thereof is situated to determine its descent and assign it to the persons. entitled thereto.95 The statute has been sustained against the objection that it was not authorized by the constitutional grant of jurisdiction to the probate courts over the estates of deceased persons, and held applicable to the estate of a person dying before, as well as after, its enactment." The probate court of any county wherein lies any part of the lands of a decedent in which a proper petition is first filed has jurisdiction to determine the descent of all lands of the decedent in this state and to decree distribution thereof, though a part of them may lie in other counties."7

96

130. Petition Statute-Such petition, which shall be verified, shall state that more than five years have passed since decedent's death, that no will has been probated nor any administration granted in this state, or if administration was had, that real property was omitted in the administration or final decree, and shall give the name of the decedent, the time and place of his death, the contents of his will, if he left one, and the names and residences of his heirs, and of his devisees, if any, according to the best information of said petitioner; and it shall contain a description of such real estate, and disclose the interest of the decedent and of the petitioner therein.98

131. Notice of hearing-Parties-Statute-Upon the filing of said petition the court, by its order, shall require all persons interested to show cause, at a time and place therein fixed, why the same should not be granted, and notice of such hearing shall be given in the manner prescribed by law upon an application for a final decree. All parties interested may appear and be heard thereon, and the court, in its discretion, may require that issues be framed and may confine the proofs to such issues." It is not necessary that the land should be described in the order fixing the time and place of hearing the petition.1

95 G. S. 1913, § 7245.

96 Fitzpatrick v. Simonson Bros. Mfg. Co., 86 Minn. 104, 90 N. W. 378.

97 Chadbourne v. Alden, 98 Minn. 118, 107 N. W. 148.

98 G. S. 1913, § 7246.

99 G. S. 1913, § 7247.

1 Chadbourne v. Alden, 98 Minn. 118, 107 N. W. 148.

132. Decree of distribution-Statute-If, upon such hearing, it transpires that such decedent died testate, his will shall be admitted to probate upon the proofs required by law in other cases. And in all cases the court shall hear and determine the facts, and enter its decree, assigning and distributing all such real estate to the persons entitled thereto, which decree shall have the force and effect of a final decree of the probate court, and may be appealed from in like manner. A certified copy of any such decree may be filed for record with the register of deeds, who shall record the same, and enter in his reception book the name of the decedent as grantor, and the names of the persons to whom said real estate is assigned, as grantees."

133. Government lands patented to heirs-Decree of distributionStatute-Whenever any person holding a homestead or tree claim under the laws of the United States shall have died before a patent therefor has issued, and, by reason of such death, a patent shall afterward be granted to "the heirs" of such person, the probate court of the county in which the lands so patented are situated, upon petition, notice, and hearing substantially in the form and manner provided for in §§ 72457248 (§§ 129-132, supra), may determine who are such heirs, and may assign to them their respective shares in said homestead or tree claim; and a copy of the decree of assignment may be filed, recorded, and entered in like manner and with like effect.3

134. Decree of heirship under Laws 1885, c. 50-Laws 1885, c. 50, merely established a rule of evidence by which a "decree of heirship" was made prima facie evidence of certain facts and cast the burden of disproving them on the opposite party. After the repeal of that statute by the probate code, such "decrees" ceased to have any probative force whatever, though admitted without objection.*

2 G. S. 1913, § 7248.

8 G. S. 1913, § 7249.

4 Irwin v. Pierro, 44 Minn. 490, 47 N. W. 154.

WILLS

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