113 Kan. 539 | Kan. | 1923
The opinion of the court was delivered by
In March, 1921, C. H. Klein died intestate leaving a widow, Anna T. Klein, and an only child, Mabel T. Blackshere, the daughter of a former wife, who died in 1905. At the time of his
The plaintiff contends that the evidence was not sufficient to sustain the finding that the defendant’s father gave her the land. There was testimony to this .effect: He had on several occasions told other persons that the land belonged to her — referring in some cases to but one of the quarters but at times to both. In one instance he said to the tenant that he had given it to her and had had a deed made out but had not executed it for fear the property would be wasted, and that he would do so later on. He handled the land for her and turned the rent over to her for many years, during which time she paid the taxes. After her marriage (in 1898) she and her husband rented it to others or worked it themselves. They improved it and a forty-acre tract which they purchased to use in connection with it, expending in this way considerable sums.
From this statement it is obvious that there was substantial evidence in favor of the defendant’s claim of title. The plaintiff argues. that an oral gift of land can be established only by clear and convincing evidence, and that this requirement was not met, particularly in view of the fact that a number of leases of the property and receipts for rent were signed by the defendant’s father in his own name, some of the dates being as late as 1908, and evidence was introduced that in 1912 he had caused a will to be drawn (which, however, was not executed) undertaking to give a life estate in the land in controversy to the defendant,, with a remainder to her
Complaint is made that the defendant was permitted to testify to a communication had personally by her with her father in violation of the statute. (Civ. Code, § 320.) She testified that when she and her husband returned from a trip to California she had a conversation with her father about the property in controversy. She was then asked, “Now, as a result of that conversation with your father, without stating what it was, what was done with regard to the purchase of any more land?” She answered, “We bought forty acres of land higher up and we have a small house on it.” Upon further examination she added that $18,000 or $20,000 was spent in improving the forty acres; that it was higher than the other land and the improvements were placed on it to get away from the danger of high water. For the witness.to testify that as a result of the conversation the forty acre tract was bought and improved was equivalent to her testifying that in the course in the conversation her father said something that justified or related to the purchase and improvement, and the character of what was said became a fair matter for surmise or inference by the jury, for otherwise the evidence was without force. A natural supposition would be that the talk confirmed the defendant’s title and encouraged her and her husband to make large expenditures in reliance upon her ownership of the land here in con-, troversy, or included advice with reference to the use of the new tract in connection with it. At all events the effect of the evidence was to permit the jury to speculate as to the purport of the conversation. Of a somewhat similar situation it has been said: “A plaintiff in an action against an administrator may ordinarily testify to his
The defendant suggests that any error in the admission of this testimony was waived because the witness was permitted to testify without objection to the making of improvements upon the tract-purchased. The question and answer quoted are not objectionable because they show that the forty acre tract was bought and improved but because they indicate that the purchase and improvements were the result of the conversation.
Complaint is also made of the refusal to give an instruction reading:
“You are instructed that while less positive proof is required to establish a parol gift of land from father to daughter, than between persons not so related, you are not warranted in inferring a gift from slight circumstances. The proof must be of such a clear nature and quality as satisfies your mind that the gift was actually made.”
An instruction of which this is practically a paraphrase has been said by this court not to place too great a burden on a claimant under similar conditions. (Cook v. Cook, 99 Kan. 351, 354, 161 Pac. 625.) “An oral agreement that operates as a transfer of land must, of course, be made out by clear and satisfactory proof.” (Bichel v. Oliver, 77 Kan. 696, 700, 95 Pac. 396.) “Where a contract for the sale of land rests in parol, the evidence of the making of the contract must be clear and convincing.” (36 Cyc. 689.) Even where the issue is whether a fraud was committed the mere giving of the usual instruction that the verdict is to be in accordance with the preponderance of the evidence has been held not to require a reversal where no more specific instruction was asked and where no language was used in the charge tending to minimize the degree of proof required.
The jury were instructed that the gift of the land to the defendant by her father (assuming it to have been made) was presumed to have been an advancement, and the burden was upon her to show the contrary. Under this instruction we think the finding of the jury that the gift was not made as an advancement was not supported by the evidence. We discover nothing in the testimony, the general scope of which is indicated by what has already been said, having any tendency to show that if the land was given to the defendant it was intended as a preferential gift rather than as an advancement. The land appears to have represented approximately half of what the intestate owned — at all events he is not shown to have had so much property that this gift would not have seriously diminished his estate. The age of the defendant when the gift was made (sixteen) was as consistent with the theory of advancement as of preference. She and her mother were the only persons then reasonably- within contemplation , as the probable sharers in her father’s estate. Without some specific reason, which we do not find in the evidence, he can hardly be regarded as intending to give her at once substantially half of what he was worth with the expectation that at his death she would share equally with her mother in the remaining half. Indeed, he could not have intended her to become the full owner of the land given her, for to accomplish that result the signature of her mother to a deed would have been required. Nor is it reasonable to suppose that he contemplated the changes that later occurred — the death of his wife and his remarriage — which altered the situation in the respect just suggested.
The doctrine of advancement is ordinarily held not to apply to gifts made by a husband to his wife. (18 C. J. 914; Thornton on Gifts and Advancements, § 605; 2 Enc. L. & P. 327.) The term used in a colloquial sense has sometimes been applied to such a gift, but only as indicating its validity against the husband’s creditors. (1 R.
“Property given by an intestate, by way of advancement to an heir, shall be considered part of the estate, so far as regards the division and distribution thereof, and shall be taken by such heir toward his part of the estate at what it would now be worth if in the condition in which it was so given him.” (Gen. Stat. 1915, § 3848, adopted in 1868.)
“Generally speaking, the word ‘heirs’ does not include the widow.” (Note, L. R. A. 1918 A 1109.) But under out statutes the widow is an heir of her husband. (Dodge v. Beeler, 12 Kan. 524; Newby v. Anderson, 106 Kan. 477,188 Pac. 438. Since the statute in terms includes her and she is within the reason of the advancement doctrine we see no ground for her exclusion from its benefits or burdens, or for applying any other than the ordinary rule of presumption where she is concerned. The section of the statute just quoted was taken from that of Iowa. (Laws of Iowa, Revision of 1860, § 2445.) The court of that state (in as decision from which the chief justice dissented) has held that the widow’s share in her husband’s estate is not increased by a gift to his child being held to be an advancement. (In re Will of Miller, 73 Iowa, 118, decided in 1887.) There, however, the widow has a dower interest in her husband’s realty, and is not regarded as an heir. (Braun v. Mathieson, 139 Iowa, 409, 413.) We conclude that the law was correctly stated in the instruction that the gift, if made to the defendant, was presumed to be an advancement.
The judgment is reversed and the cause is remanded for further proceedings. A new trial will not be ordered, because the plaintiff has consented that the decision that the land was given to the defendant may stand if it is held to have been intended as an advancement. In view of this consent the trial court is directed to render judgment decreeing the defendant to be the owner of the land, but to have received it as an advancement.