72 Neb. 652 | Neb. | 1904
This is an action on a promissory note executed by George M. Lodge and his wife, N. S. Lodge, to Nathaniel
There is little disputed testimony in the record, and the controversy arises as to the sufficiency of the evidence to show that the note in suit was given by Nathaniel Smith to his daughter as an advancement. The undisputed facts in the record are that Nathaniel Smith was a retired minister of the gospel at the time the note in suit Avas executed, was past 80 years of age, and had an estate consisting mostly of money; that he loaned this money to his children, taking notes, with interest reserved, from time to time; that in 1881 the defendant and his wife borrowed $150 of Mr. Smith, and gave a note to evidence the indebtedness; that in 1882 Mr. Smith insisted on their taking $500 more of his money. The defendant testifies that they did not need the money at that time, and hesitated to take it, but that Mr. Smith claimed that there was no probability that he would ever Avant the money during his lifetime. Accordingly, the defendant and his Avife executed a note for the $500, and received the money. Later the note of $500 and $150 Avere both put into one note bearing 7 per cent, interest, and payable to Nathaniel Smith or his administrator 5 years after date. In 1889 the note in controversy Avas given by request of Mr. Smith, because he had lost or mislaid the former note. The first $650 note was given in response to a request contained in a letter Avritten by Mr. Smith to his daughter from Geneseo, Illinois, on January 1, 1889. The communica
“Inclosed in this I will send you a note embracing the other notes, putting the AAdiole interest at 7 per cent, as you only have $650. I should like to furnish you $500 or more as soon as Alice (another daughter) pays in on her notes. But I Avant you to see to it that it is put Avhere it Avill do you some good. If you have to, invest in the savings bank note. The bank here only alloAvs four per cent, paid, sincerely that would be better than nothing. In my will I have not designated anything ‘to the mission boards of the Congregational church, the foreign and home boards, but I thought I could do better for the children and just as well for the boards by requesting them to give one per cent, of their inheritances to the boards after I am gone. By doing this annually they Avould remember their legacy, and from AA'lience it Avas derived. I have Avritten to Frances (another daughter) about this. She acquiesced in it. I shall Avrite to all on this point and wish your reply. I thought if seven per cent, could be paid while I am here, one per cent, could be easier done after I am aAvay. What a pity Leander has so much money. He cannot find any place for a home. You and Mr. Lodge can sign this note and return it, and I Avill send these (the former notes) marked paid. I remain, Your father, Nathaniel Smith.” On the 9th day of January, 1889, Mr. Smith directed a communication to the defendant George M. Lodge, concerning the note in controversy, as folloAvs:
“Yours postmarked the 7th Avas received here the 8th, enclosing note. The note was signed all right, but Avhat has become of it is more than I can tell. I have hunted my room all over. It seems I must have been very careless. It is one of the greatest mysteries I have ever tried to understand. So, I have concluded to write another note for you to sign. I knoAV it is asking for a great deal of credulity from others, but if that note is found I will send it to you, signed, paid by duplicate, and you can keep this*655 letter as good testimony in the case. I do not see hnt that I shall have to give in that my memory is failing. P. S. Yon Avill understand that the notes I have taken of children for money loaned Avill be considered as so much cash, and will at my death be returned to you in the room of so much cash. This is to save you the necessity of sending the money to pay them and having it returned to you again. I shall endeavor to even up the inheritances as soon and as far as possible. My funds are noAV in the hands of my children except $1100. I am trying to get things in a satisfactory condition to leave.”
At the time of the suit on this note Mr. Smith was still living at the age of 92 years, and gave a deposition AAdiich consisted mostly of categorical answers to direct questions propounded to him. After ansAvering the interrogatories that he had indorsed the note to the plaintiff for collection, in ansAver to the question, “For Avhat was that note given by Mr. and Mrs. Lodge?” he ansAvered, “For money that I had loaned to them.” In ansAver to the interrogatory, “State Avhether the money for AAdiich this note Avas given Avas an advancement or gift from you to your daughter Mi’s. Lodge, or Avas intended as such,” he answered, “It Avas not intended as a gift or advancement.” In answer to the interrogatory, “State whether or not you ever made an adArancement to your daughter Mrs. Lodge, or to any other children of yours,” he ansAvered, “I made no advancements or gift to any of my children. I made loans to them, but no gift.” This constitutes all the material testimony contained in the record touching on the question at issue.
Section 37, chapter 23, Compiled Statutes, 1903 (Annotated Statutes, 4937), provides: “All gifts and grants shall be deemed to have been made in advancement, if they are expressed in the gift or grant to be so made, or if charged in Avriting by the intestate as an advancement, or acknowledged in Avriting as such by the child or other descendant.” Under this section of the statute, the essential elements of an advancement are, first, that they
“A charge of the money or chattel advanced by the father to the son, or a memorandum of the fact that the sum adAmnced AAras intended as a gift, is received as evidence of the fact. ' Sometimes a bond or note is taken; but that converts the intended advancement into a debt from the son, unless a memorandum is elsewhere made of its real character.”
For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.