120 Iowa 71 | Iowa | 1903
T. J. Newell died intestate, August 19, 1900, seised of five hundred and eighty-eight acres of land in Wapello county, Iowa. He left surviving a widow, Margaret Newell, who is defendant -in this case, ten children, nine of whom were daughters, seven of these being plaintiffs in the case and two defendants, and one son, Samuel, who is appellant. The action was brought to partition the lands belonging to the deceased at the time of his death. The widow’s distributive share seems to have been determined in probate before this action was tried; but an appeal was taken by plaintiffs from the order alloting her share.
In January of the year 1900, T. J. Newell bought of one Dolts ninety-three and one-half acres of land, paying him $3,500 therefor, but the title to the land was taken in the name of Samuel, who held it at the time of trial. The deed conveying the property is an ordinary warranty deed, for the consideration heretofore named, and it expressly recites that the consideration was paid “by T. J. Newell for Samuel Newell. ” Plaintiff contended, and
Samuel Newell contends that the transaction was a gift, and that in addition thereto he should receive a share of the real estate. The value of the estate, after deduct-
The gist of the whole matter is the intent of the donor at the time of the transfer, and this may be established by his declarations prior to the time of the transfer or contem-
Samuel Newell is relying upon certain declarations-made by T. J., his father, long subsequent to the conveyance, tending to show that the transaction was a gift. The-declarations were not part of the res gestae, and, if admissible at all, the evidence being hearsay, it must be because-such declarations were against interest. There are cases holding that they are. Gunn v. Thurston, 139 Mo. 339 (32 S. W. Rep. 654); Watkins v. Young, 31 Grat. 84; MeDearman v. Hodneit, 83 Va. 281 (2 S. E. Rep. 644); Autrey v. Autrey's Adm’r., 37 Ala. 614. But we do not regard these-cases sound on principle or sustained by. authority. The interest of the declarant, which makes his derogatory admissions or statements admissible, is a pecuniary, or proprietary one, and even in such-cases these declarations are not generally received when the title of a third person is involved. Westeott v. Westcott, 75 Iowa, 628; Greenleaf Evidence (14th Ed.) section 147; County of Mahaska v. Ingalls, 16 Iowa, 81; Moehn v. Moehn, 105 Iowa, 710.
Were the dcelarations said to have been made in this case by T. J. Newell after the deed to Samuel statements derogatory to any pecuniary, or proprietary interest held by him in the property? We think not. An- advancement is a gift, and after it is made the donor has no interest whatever therein, although, as we have said, he might doubtless have converted it into a simple gift. But there is no claim in this case that he did so, and all the testimony offered had reference to the donor’s intention atthe time the deed was
The only parties in interest in such cases are the survivors of the donor. They, of course, had an interest in knowing whether or no the property should be brought into hotchpot or treated as a pure gift, but the donor had no further pecuniary or proprietary interest in it. Under the statutes of this state advancements for the purpose of distribution and division are treated as part of the estate, but for no other purpose. The donee cannot be required to refund any portion thereof, nor can they be taken for debts. Code, section 3383. Indeed, they create no right of .property in the estate. In re Will of Miller, 73 Iowa, 118. T. J. Newell never at any time owned the property in this case. The conveyance was from Dolts to Samuel Newell, and the transaction was either a resulting trust, a gift pure and simple, or an advancement. His declarations to the effect that it was not a resulting trust were no doubt admissible for they would clearly be against interest, as in Culp v. Price, 107 Ioiva, 136. But there is no claim of resulting trust in the case. The transaction was a gift or an advancement, and in either case the donor lost all interest in the property when the conveyance was made. This exact point was ruled adversely to appellant in Thistlewaite v. IMstlewaite, 132 Ind. 355 (31 N. E. Rep. 496.) See, also, Frey v. Heydt, 116 Pa. 601 (11 Atl. Rep. 535); Hatch, v. Straight, 3 Conn. 31, (8 Am. Dec. 152); Williams v. Williams, 32 Beav. 870; House v. Woodard, 5 Cold. 201; Thornton on Gifts, section 587; Humbly v. Stainton, 24 Ala. 712. In Middleton v. Middleton, 31 Iowa, 151, dying declarations of the donor were offered in evidence to show the character of the transaction. It was there held that such declarations were inadmissible. True, the discussion went to the point of their being admissible as dying declarations, but had they been admissible as against interest or as evidence of intent the court doubtless
II. But one other question of law is involved and that the admissibility of certain testimony from the widow, Margaret Newell, regarding personal communications and
III. Having now disposed of the law’ question, we go to the facts, in the light of the law thus announced, and with other well settled and undisputed rules in mind, have no difficulty in concluding that the decree of the trial court is correct. The whole doctrine of advancements is' founded on the old equitable maxim that “equality is equity;” hence the rule that in such a case as this the transaction is presumed to be an advancement, with the. burden on him who claims otherwise to prove it. We think defendant has failed to show that the deed was a simple gift to him. The testimony as to what occurred when the deed was made is clear and convincing, and points almost conclusively to the thought that an advancement was intended. Such evidence is much more potent than random statements, either before or afterward. Moreover, the conduct of Samuel has not at all times been
The decree of the district court is aebirmed.