122 P. 82 | Utah | 1912
This was a proceeding in equity instituted by the respondent against the appellant, for the purpose of declaring and enforcing a trust affecting certain real estate in which he claimed >an interest as an heir. The respondent and all of the appellants, except T. H. Ballantyne and Joseph Pingree, are children and heirs at law of one Peter C. Carstensen, deceased. Respondent’s mother was the plural wife of said decedent. The other appellants, except T. H. Ballantyne and Joseph Pingree aforesaid, are the children of said decedent and one Karen Carstensen, who was his legal wife and surviving widow. Upon a trial of the issues, the court made specific findings upon all questions, although many of the facts stated in the complaint were admitted by the answer of appellants. The material portions of the findings of fact are as follows:
That in the year 1887 Peter C. Carstensen died intestate at Ogden, Utah, leaving him surviving as his heirs at law Karen Carstensen, his widow, Martha Ballantyne, a married daughter, and seven minor-children, whose given names, written in the order of their ages, are, Joseph, Agnes, Charles, Alma B. (the respondent), Clara, Louisa, and Florence. Joseph, at the time of the death of the decedent, was nineteen years of age and Florence four; the remainder being of various ages between those extremes. That at the time of the death of the decedent he was the owner of certain real estate, which is particularly described. That in 1888 said Karen Carstensen was duly appointed administratrix of the estate of said Peter C. Carstensen, and was also duly appointed guardian of the persons and estates of said minor
Finding 13 is as follows:
“That on or about the 8th day of June, 1904, the said! Joseph Carstensen, at the request of some of the defendants, but not at the request of this plaintiff, nor with his knowledge, by deed of conveyance duly acknowledged and recorded in Book 46 of the Records of Deeds of Weber County, Utah, conveyed and warranted to the defendant Charles M. Cars-tensen said homestead property and 3.62 acres of meadow land described in paragraph 2 of these findings, with full knowledge of the fact, and that the said defendants, and each of them, are and the said Joseph Carstensen was holding the legal title in and to said premises to the use and benefit of the heirs of Peter C. Carstensen, deceased, including this plaintiff, and that this plaintiff was the owner of the equitable title to an undivided one-fourteenth interest therein, and entitled to a deed therefor from the said Joseph Carstensen at any time, upon demand for the same; that*411 plaintiff has not conveyed or transferred any of his right, title, or interest in and to said property, or of the title thereto, except that on or about the 9th day of September, 1905, this plaintiff executed his deed of conveyance to Charles M. Cars-tensen for all of this plaintiff’s interest in said property, for the sole purpose and with the express understanding between him and the said Charles M. Carstensen that the same was being made merely to have the legal title placed in said Charles M. Carstensen to enable him to more readily administer the affairs and estate of Karen Carstensen, deceased, and that said title was to b'e held by him in trust to the use and benefit of this plaintiff, and not otherwise; that said conveyance so made by this plaintiff to the said Charles M. Carstensen, as aforesaid, was made by this plaintiff by reason of the representation made to him by said Charles M. Carsten-sen that he and the other heirs of Peter C. Carstensen deceased, had sought legal advice relative to the administration of the estate of Karen Carstensen, deceased, and had been advisd that, because of certain defects existing in the administration of the estate of their deceased father and their own estate, while under the management and control of their said mother, as herein set forth, it would be well for all of said heirs, including this plaintiff, to quitclaim all of their respective right, title, and interest therein to the defendant Charles M. Carstensen, vn order that the whole thereof might be distributed to him, and subsequently by him partitioned among said heirs, including this plaintiff, according to their respective interests
Binding 14 is in tbe following words:
“That on the 10th day of October, 1905, a decree of distribution was made and entered in the district court of Weber County, Utah, distributing to said Charles M-. Carstensen all of said real estate.”
Binding 15, so far as material, is as follows:
“That before tbe bringing of this action the said Charles M. Carstensen undertook to and did execute deeds of conveyance, and partitioned to each of tbe said Clara Carsten-sen Bingree, Blorenee Carstensen, Louisa Carstensen Brown*412 ing, Agnes Carstensen Jenkins, and Martha C. B'allantyne all of the real estate hereinbefore described. . . . That said conveyances were made without the knowledge or consent of this plaintiff, and this plaintiff acquired no knowledge of said transfers until a certain suit was filed by one Piles against the defendants herein named and the plaintiff, and that said deeds were not made in pursuance of a so-called will made by Karen Garstensen before her death, and that said will was not in fact probated
Appellants excepted to the italicized portions of findings 13 and 15, and also to the italicized portions of the findings we have heretofore given. There are no other or further exceptions to any of the findings of fact. The findings of fact follow very closely the allegations of respondent’s complaint. The exceptions of appellants to the findings cover the only issues that were raised by their answer.
Upon the foregoing findings, the court in substance found, as a conclusion of law, that respondent was entitled to an undivided one-fourteenth interest in the real estate which had been conveyed to T. H. Ballantyne and to Christian F. Schade, and by them conveyed to Joseph Carstensen, and by him in turn conveyed to C. M. Carstensen, as found in finding 13.
Pursuant to the foregoing conclusion of law, the court entered judgment, whereby the appellants to whom the real estate had been conveyed after the distribution referred to in finding 14 were required to convey to respondent said undivided interest so found to belong to him out of his father’s estate.
Appellants contend that the findings of fact excepted to by them are not supported by the evidence. This contention cannot be sustained. After .a careful reading of the evidence, we are convinced that the findings are not only supported by the evidence, but are further convinced that they are clearly right.' It is not practical to set forth the evidence in support of the findings. If we should attempt to do so, we would have to copy the whole record, for the reason that there are some declarations and admissions coming from both
In this. ease, the principal question that respondent assumed he was required to establish was.that the conveyances to Ballantyne and Schade iand the one from them to Joseph Oarstensen, and finally the one from him to Charles M. Oarstensen, and the quitclaim deed referred to in finding 13, were made in trust for the benefit of the heirs of the decedent, Peter C. Oarstensen. That there was a trust was admitted, both in appellants’ answer and by their counsel, at the trial of the case. What was attempted to be denied in the answer was that the trust was for the puiposes alleged by respondent. That the trust relation continued on down to 0. M. Oarstensen is made clear by appellants’ counsel, through a statement which he made in answer to a certain contention made by respondent’s counsel at the trial as follows :
“Because you (referring to respondent’s counsel) are all the time claiming, while all this property was turned over to O..M. Oarstensen in his individual qapaeity, he was acting as a trustee, and we admit it, and you know it.”
The fact is that counsel for respondent did not at any time claim that the property was turned over to O. M. Oarstensen, except in trust; but what he claimed in that regard is immaterial now. It is material to know that appellants never •disputed the fact that the property was in fact held in trust, and acting upon that theory they obtained distribution thereof to all of the heirs of Peter C. Oarstensen except respondent. Appellants contended at the trial, however, and now contend, that respondent had conveyed all of his interest by a certain quitclaim deed, referred to in finding 13, and that he had received- and receipted for all of the interest due him from his father’s estate. This contention respondent emphatically
It is in connection with this contention that the only legal question involved arises. As we have already pointed out, no claim of this kind is contained
Counsel for respondent, in attempting to prove the allegations of the complaint Avith regard to the alleged trust, and for the purpose of showing that the conveyances from the
“So where statements, oral or written, made against interest, are proved, other acts or declarations made at the same time, and as a párt of the same conversation, or as a part of the same writing, favorable to the party making the declarations proved against him, and qualifying or explaining what has been so proved, are competent in his behalf.”
In Grattan v. Metropolitan Life Ins. Co., 92 N. Y. 275, 44 Am. Rep. 372, in the headmote, tbe rule is stated tbus:
“The introduction by one party of part of a conversation or a writing in evidence renders admissible, on the other side, so much of the remainder as tends to explain or qualify what has been received; and that is to be deemed a qualification which rebuts and destroys the inference to be drawn from, or the use to be made of, the portion put in evidence.”
To the same effect is Vanneter v. Crossman 42 Mich. 465, 4 N. W. 216.
The question, therefore, in every ease is whether the parts of the conversation or writing which are omitted from the original offer, and which are sought to be introduced in evidence by the adverse party,, are such as in some way qualify, explain, affect, or destroy the effect of the portions that have been admitted in evidence. In
While there are some other features in this case which, in our judgment, go far toward supporting the findings and judgment, it must suffice to say that upon the whole record it is clear to our minds that the court did no more than permit the respondent to share in his father’s estate upon the same terms and conditions that all of his half brothers and sisters were permitted to do sol This both law and justice required.
The judgment is affirmed, with costs to respondent.