143 Iowa 719 | Iowa | 1909
Alexander Gullion, under whom all parties claim, died intestate December 13, 1888, holding the legal title to two hundred acres of land in Marion County^ Iowa. No administration was ever had upon his estate. He left surviving him his widow, Mary Gullion, and Sarah Frye, William Gullion, Andrew J. Gullion, Louis B. Gullion, Rebecca J. Sharon, Eva E. Davis, Dora B. Fee, and
The daughters, Bebecca J. Sharon, Eva E. Davis, and Dora B. Fee unite in an answer and cross-petition, denying that the plaintiffs have any interest in the land, and allege that upon the death of their father, Alexander Gullion, his widow, Mary Gullion, became seised of a one-third interest in said property, and that thereafter, having been made practically helpless by a stroke of paralysis, she agreed with her said daughters that, if they would remain with her and care for her until her death, she would devise to them her said share in the land, and that from the time of' said promise they should be the owners of said interest, subject only to their rendering the agreed consideration. They allege that they faithfully performed their part of the agreement, and that they are therefore the equitable owners of the one-third part of the land sought to be partitioned. These daughters also answer the cross-petition of Andrew J. Gullion admitting his right of ownership in all the land except the one-third part, which they themselves claimed as aforesaid under the agreement with their mother. Andrew J. Gullion in turn disclaims any interest as against his said sisters Bebecca, Eva E., and Dora B. in the one-third of the land. The other two surviving children of Alexander Gullion, deceased, Louis B. Gullion and Mary L. Neifert, unite in disclaiming any and all interest in the land in favor of Andrew J., Bebecca J., Eva E., and Dora B., whose claimg of right in the premises they admit. The
But it is said that the disclaimers filed not only removed the disqualification of interest, but also in effect eliminated these persons as parties to the proceedings and made them competent witnesses under the rule observed in Conger v. Bean, 58 Iowa, 321. If a full and frank disclaimer of all interest and claim in the property as against the plaintiffs had been made by these witnesses, there would be some chance for argument in support of this proposition (though we do not now pass upon that question) ; but the disclaimers here entered are in peculiar form. Bebecca J. Sharon, Eva E. Davis, Dora B. Fee, Louis B. Gullion, and Mary Neifert each appear and admit, not the claims made in the plaintiffs’ petition, but the claims made by their codefendant, Andrew J. Gullion, while Andrew J. in turn united with Louis B. and Mary in admitting the claims set forth in the cross-petition of tlieir sisters Bebecca J., Eva E., and Dora B. In each case the disclaimer is carefully framed to secure the success of the cross-petitioners, and insure, if possible, the defeat of the plaintiffs, and at th-e same time leave the way open for the disclaiming parties to share in the partition if the cross-petitioners fail. For instance, Louis B. Gullion and Mary Neifert unite in saying that they “disclaim any right, title or interest in or to said land adversely to Andrew J. Gullion or either of the above-named sisters, and hereby consent that judgment and decree may be taken against them in favor of the said Andrew J. Gullion and in favor of Bebecca J. Sharon, Eva E. D'avis and Dora B. Fee on their cross-petition.” The disclaimer of the three last-named sisters in favor of Andrew J. Gullion, and his disclaimer in their favor, are each in the same guarded terms. In short, it appears to be an alliance, defensive, if not ’offensive, between the surviving children of Alexander Gullion, to eliminate his grandchildren from any share in
The ease is one of a very common type where a son or daughter sets up a claim to more 'than his or her proportionate sharé of a deceased parent’s estate by virtue of an alleged gift or oral contract of some kind. Such claims are easily made, and, but for the protection given by the statute governing the competency of witnesses, very difficult to defend. Nor the discovery of the truth, even proximately, reliance must be placed very largely upon indirect or circumstantial' proof, and circumstances arise in such infinite variety of phases and combinations that, notwithstanding the great number of cases, no two are ever quite alike, and ordinarily no one of them can safely be accepted as a governing precedent for another. Each must in a large degree rest on its own record, controlled, of course, by reference to general principles. A reading of the entire case now before us impresses us with the belief that the case made by Andrew J. Gullion is largely an afterthought, having its origin since the death of his mother; not that he has consciously sought to wrong or defraud the families of his deceased sister and brother, but that he has persuaded himself he has earned the property and ought to have it. Laboring under such a conviction, it is not difficult for the average human mind and memory to hark back over the years and recall incidents, circumstances,' and promises, more or less vague, out of which to ■ construct a plausible case. Much care and discrimination are always required in sifting the testimony produced on either side of such controversies. To do otherwise than to insist that such claims can prevail only when well and clearly established is to endanger every title passing by descent under our statute of inheritance.
We are satisfied that appellants’ claims have not been thus sustained by the evidence, and the decree of the 'district court is therefore affirmed.