Bash v. Bash, 182 Iowa 55

Bash v. Bash

182 Iowa 55 | Iowa | 1917

Evans, J.

— Lebbeus Bash, a resident of Marshall County, died intestate, September 15, 1912, leaving Delphia Bash as his surviving spouse, and all the other parties herein as his children and heirs at law. The defendants Catherine L. Bash and Kenneth L. Bash were minor children of the decedent and his surviving spouse, plaintiff herein. The other defendants were the children and heirs of the decedent by a former marriage. The minor children, Catherine and Kenneth, are the cross petitioners, and are represented by their mother, Delphia Bash, as their guardian. As already indicated. the codefendants make two contentions: (1) That the decree confirming shares, entered April 3, 1913, was a final adjudication of the respective interests of the parties in the real estate involved, and that it was beyond the power of the cross petitioners to attack the same on December 9, 1914, the only ground of attack urged in the cross petition being that the cross petitioners did not know of the alleged advancement until after such decree was entered. (2) That the. alleged-gifts lo the codefendants were not intended as advancements, but were intended as gifts absolute.

To find affinuátively upon either of these contentions would affirm the judgment of the lower court. We shall consider first the second contention. It is undisputed that, maiiy years ago, Lebbeus Bash conveyed to his three children by his first marriage a half section of land in Pocahontas County. This was a gift. Tinder the law of this state, such gift will be presumed to have been an advancement, unless such presumption is overcome by a consideration of all the evidence in the case. • Tt becomes important, *58therefore, to look Into the circumstances leading up to and suiTounding this transaction, in order to determine whether it Avas intended as an advancement or as a gift absolute. The criterion is the intent of the donor at the time of the giving. Ellis v. Newell, 120 Iowa 71. On and prior to the year 1894, the family of Lebbeus Bash consisted of his then wife and three adult children, all married. He had considerable property, including the half section in question. His landed interests, hoAvever, Avere situated mostly in Marshall County. At about that time, he and his then Avife had decided between themselves to give the Pocahontas County land to their children. In that year, the wife died. In 1895, while a widoAver, Lebbeus Bash conveyed the property by one deed to his three children as grantees, in consideration of love and affection and $1. As tending to overcome the presumption of advancement, considerable evidence was introduced of statements made by him before and at the time of such commyance. These statements were, in general effect, that he was making- a gift of the land; that he was doing so partly becaAise his Avife had reqAtested it. There is much force in the contention of appellant that much, if not all, of Avhat Avas said concerning the alleged gift of the land could haAre been consistently said, even though he were in fact intending an advancement. HoweA*er, the circumstance is entitled to some consideration that, in all that he said on the subject, it does not appear that at any time the thought of an advancement as distinguished from a gift Avas in his mind in any Avay. But there is another feature of .the transaction that, to our minds, is of great significance, as bearing upon the question of intent to make an advancement. The doctrine of advancement and the presumption in its favor are an application of the maxim that equality is equity. The presumption that a gift is intended as an advancement is based upon the assunrption that; ordinarily, a parent intends equality of distribution of his *59estate among his children, and upon the further assumption that a substantial gift to one tends to destroy that equality, unless such gift be equalized by a later distribution to the others. Suppose, for instance, a typical family, where the oldest son has reached his majority, and perchance has married. His father gives to him 80 acres of land. When the second son reaches the same point, a similar gift is made, and so on down the line. The father may die before all of his children have been served alike. In the distribution of his estate, the presumption of an intended advancement as to those who received their gifts works out an equality among the children. Turning to the case before us,' Lebbeus Bash in 1895 was already an old man. All his children were adult and married. His wife was dead. Under these circumstances, he made a gift to each of his children, at the same time 'and in exactly the same amount. He had no need of the presumption of advancement in order to accomplish equality between his children. He accomplished it then and there, by the very method of his gifts. Unless he then and there intended that future account should be taken of these gifts as advancements, to be charged against the donees in the distribution of his estate, then they were gifts absolute, and not advancements. There is a measure of absurdity in supposing that, under these circumstances, he could have intended an advancement; that is to say: that he could have intended that, in the future distribution of his estate, these gifts should be equalized, when in truth he himself had already equalized them in the giving. True it was that, about two years thereafter, he married the plaintiff, and two children were born to him under this marriage. This subsequent event created no equity against, nor introduced any infirmity into, the gifts already made, if such they were. There is no presumption that he foresaw this subsequent event in 1895, nor that it cast its shadow before upon his then intention.

*60Looking, therefore, upon this joint gift to all his children in the light of all the circumstances surrounding it, we think the presumption that it was intended as an advancement, rather than a gift absolute, is clearly overcome. This conclusion being decisive of the appeal, we need not consider the contested question of practice. The decree dismissing the cross petition is — Affirmed.

G-aynor, O. J., Ladd and Salinger, JJ., concur.