294 F. 44 | 8th Cir. | 1923
The essential facts for the determination of the legal questions in this case appear to be as follows:
In the court below the appellant was the defendant and the appellees, the plaintiffs. In April, 1914, a contract was entered into between W. R. Harris and Monroe Harper. Harris subsequently died, and his executor brought this suit against David Monroe Harper, who was the son of the Harper who made the original contract. The contract was for the purchase and sale of lands, or virtually the trading of lands between the parties; other provisions of the contract being immaterial here. One parcel of the land traded by Harris to Harper was, at the request of Harper, deeded to his son David Monroe Harper, the appellant here; there being no other or further consideration between the younger Harper and Harris than this request of the father.
Harper likewise deeded certain lands to Harris. Subsequently it appeared that a lease was in existence at the time of the transfer, upon the land so transferred by Harper to Harris, which was in violation of the covenants in the deed, and the lessees having been dispossessed by Harris, brought suit against Harris, his wife, and Harper for damages in the state court oí New Mexico and recovered judgment against Harris and his wife, the elder Harper having originally been joined as defendant, but having died in the meantime, and the action having been abated as to him. The judgment was entered only as against the Harrises, That case was subsequently appealed from and the judgment affirmed in the state courts.
The plaintiffs now seek by virtue of said judgment to impress a lien upon the land which Harris deeded to the younger Harper by the direction of his father. This relief is sought under and by virtue of a statute of the state of New Mexico which reads as follows:
“lineal and collateral securities in all cases are hereby forbidden, but the heirs and legal claimants of any person who may have made any written contract or agreement shall be responsible for said contract or agreement to*46 the extent of the lands limited or bequeathed, in such case, and in the manner prescribed by law.” Section 4766, New Mexico Statutes, Annotated Codification of 1915.
The suit' is brought upon the theory that the younger Harper, with respect to the lands which were transferred to him, was an heir of his father, bringing him within the scope of this section of the New Mexico statute, by reason of the fact that the transfer of the land at the request of the elder Harper was an advancement, and therefore in the nature of an inheritance. This in substance is specifically alleged in the bill.
The record discloses, further, that subsequent to the transfers of land under the aforesaid contract the elder Harper removed to the state of California, and while there made a last will and testament, which appears in the record before this court, by which will the younger Harper, who was an only son, was made the sole beneficiary of his father’s estate. This will was subsequently probated in the California courts.
Various legal questions are raised in the briefs, but the most important question in the case is as to whether or not the transfer of the lancl from the elder Harper to his son' was an advancement, and this will be accordingly first considered. In Corpus Juris, the term “advancement” is defined in the following language:
“In its legal sense, and as employed in tbe law of descent and distribution, an advancement is an irrevocable gift in prsesenti of money or property, real or personal, to a child by a parent to enable the donee to anticipate his inheritance to the extent of the gift. It has been defined by Code as any provision by a parent, made to, and accepted by, a child, out of his estate, either in money or property, during his lifetime, over and above the obligation of the parent for maintenance and education.” 18 C. J. 911.
“Gifts by a parent to a child cannot be deemed advancements so long as the donor is alive, because it is merely as auxiliary to the distribution of decedents’ estates that the.question is raised.” 18 C. J. 918; Springer’s Appeal, 29 Pa. 208.
An advancement in the first instance is a gift, for the reason that, should the donee die before the donor, thereby precluding the former from becoming an heir of the latter, the question as to whether or not the transfer of property was an advancement would not arise. Corpus Juris again says:
*47 “While it is essential to an advancement that there be a gift, and although every advancement is, in a sense, a gift, it is distinguishable from an ordinary gift inter vivos by the fact that the amount or value of what is given as an advancement is charged against the donee’s distributive share of the donor’s estate.” 18 C. J. 912.
The term is therefore discussed in the books only with respect to the estates of deceased persons.
“Testators by their wills may and sometimes do adopt the law of advancements, by directing that amounts advanced to legatees aud devisees shall be deducted from the shares given them by the will: and where testator’s intention is clear that sums advanced should be deducted from bequests made, his intention must, of course control.” 40 Cyc. 1922; In re McKibbin’s Estate, 207 Pa. 1, 56 Atl. 62.
Another cogent reason for the conclusion that there was no advancement in the case is that an analysis of the evidence which in any way tends to support the theory óf advancement shows that there is only the testimony of one witness which may be considered, and to the
For the reasons stated, the decree of the trial court must be reversed, and the cause remanded, with directions to dismiss the bill of complaint.
•^»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
other cases see same topic & KEY-NUMBER in .all Key-Numbered Digests & Indexes