89 Ill. 205 | Ill. | 1878
delivered the opinion of the Court:
This proceeding was to divide the real estate of which Thomas H. Pigg died seized, among his several heirs, and for other relief in connection with the distribution of his estate. Advancements had.' been made by the intestate, in real estate to his sons and personalty to his daughters, and the matters in dispute relate to the value of such advancements. On the hearing the husbands of two of the heirs were permitted to testify on their behalf, but we do not understand they were incompetent witnesses under the statute that defines the competency of witnesses in civil cases. The property involved belonged to the litigants, and it makes no difference how they acquired the title to it, whether by purchase or descent. Under our statute, parties are competent witnesses notwithstanding their interest in the property, except where they sue or defend in certain representative capacities. There is, however, no more reason for saying the parties in this case sue or defend as heirs than if the property had been acquired otherwise than by inheritance, and that clause of the statute which inhibits parties in interest or of record in such cases from becoming witnesses on their own motion, has no application to the case in hand. As the litigation concerns the separate property of married women in a case where they may be witnesses, their husbands are also competent witnesses on their behalf.
An effort was made to show the intestate had made equal advancements to his sons and daughters, by the conveyance to the former of lands and of money and articles of personal property to the latter, but that theory of the case is not sustained by any satisfactory evidence. It is proved such advancements were made, but it is by no means proved they were of equal value, and the court was right in first endeavoring to ascertain the value, and requiring the same to be brought into hotchpot with the whole estate, before decreeing partition.
The point most contested is as to' the value of the lands conveyed by the intestate to his sons by way of advancements. Ho question is made but that the value is to be placed on the advancements at the time the same were made, but the disagreement is as to what shall be regarded as the time when such advancements were in fact made to the sons by the intestate, whether at the date possession was taken or at the date of the deeds conveying the property. Under the testimony, it seems clear the former ought to be treated as the date of the advancements. The making of the deeds at a later period was in fulfillment of the ancestor’s bounty, and relates back to the date the gifts were in fact made. It was many years, in case of two of the heirs, after possession was taken before any deeds were made to them, and in the meantime their labor and the general appreciation in the values of all property had given increased value to the lands, that was not the gift of the ancestor, and of course could not be justly estimated in arriving at the value of the advancements.
Regarding the time possession was taken by the beneficiaries as the time when the values of the advancements should be estimated, it does not seem the values placed on the lands are justified by anything contained in the record. They are certainly higher than the evidence will warrant. Prices were placed upon the lands by the witnesses at the time possession was taken, and also at the date of the deeds, and it can not be known certainly at what time the court estimated the same. If at the latter date, it was wrong, and if at the former, we are not entirely satisfied with the values fixed. At least the case ought to be reheard, when the court will confine the testimony as to the value of the advancements to the time when possession was taken of the lands by the donees.
As the decree is to be reversed, it will not be necessary to remark upon objections taken to the form of the decree. Any mere formal errors can be readily corrected. Time for consideration has now elapsed, and the court can, with propriety, require all the heirs to elect at once whether they will bring their several advancements into hotchpot with the whole estate, and share in the distribution to be made.
On account of the error indicated, the decree will be reversed and the cause remanded.
Decree reversed.
