144 Va. 816 | Va. Ct. App. | 1925
delivered the opinion of the court.
This is a suit for partition brought by the seven adult children of H. C. Rowe against his widow, Lula B. Rowe, who was his second wife, and their infant son, Barnes Rowe, for the purpose of assigning the widow her dower, and dividing the real estate, of which H. C. Rowe died seized, among his children.
Commissioners were appointed by the court to assign the widow’s dower and make partition of the balance of the real estate in kind among his children, and report the same to court. The commissioners performed-their duties to the satisfaction of the adult parties and re
The plaintiffs answered the cross-bill and exceptions, claiming that their respective gifts were made as absolute gifts and not as advancements. Upon issue thus joined, the court, by consent of the parties, heard the evidence ore tenus and decided that the gifts were not advancements, and from its decree entered pursuant to this decision, the infant by his next friend appealed.
The intent of section 5278, supra, is to bring about as nearly as may be an equal division of the estate of a decedent among his children or other descendants, except so far as he may have himself intentionally distributed his estate unequally. Where the gift is substantial in amount, the law attaches the presumption to every gift by an ancestor to a descendant, that it is a gift by way of advancement, and this presumption is one of law and is based upon the supposed intention or desire of the ancestor that any inequalities in the division of his whole estate among his heirs-at-law and distributees shall be corrected as far as practicable. But this presumption may be rebutted by affirmative proof, and for the purpose of .showing the real intention of the ancestor, his declara
The evidence shows that H. C. Rowe died in the month of..................................~, 1922. In 1906 he gave Ira B. (“Burke”) Rowe $300.00 and in 1920 he gave him an additional $1,000.00. On the 4th day of'March, 1909, H. C. Rowe executed and delivered to each of four other children deeds conveying certain real estate to them respectively as and for homes. This was prior to his second marriage. On the 8th day of December, 1910, he conveyed to the daughter-certain real estate. On August 2, 1915, he executed a deed to real estate to his son, Morris M. Rowe. Thus it is established without controversy that H. C. Rowe,, during his life, gave to each of his children substantial, gifts to which the law attaches the presumption that each was a gift by way of advancement, and casts upon each donee the burden of rebutting that pre- . sumption by affirmative proof.
There is no difference between the learned counsel in reference to the law of gifts by way of advancement, so that the purpose of the appellees’ evidence is to-establish the real intention of H. C. Rowe in making, the gifts to his seven children to be absolute gifts, and thus rebut the presumption of law that said gifts, were advancements.
In short — the question for determination is, have the appellees proven that his real intention was contrary to this presumption of law.
They have proven that their father started life without means and that by hard work and frugality
Nor does the age and dependence of the infant, coupled with the fact that they worked for and with their father in accumulating his estate, evidence any intention to discriminate against the infant, especially when the older children are men and women of mature years and established in life. The necessities of the infant for maintenance and education would naturally call for greater consideration from the parent.
The circumstances and relations of the father and children do not rebut the presumption of law that the gifts were made by way of advancements.
This brings us to the discussion of the declarations of H. C. Rowe. At the time of the respective gifts nothing was said, except two of the sons testified that he said “he gave it without strings tied to it” and
Subsequent to the gifts to his children, several witnesses testify that H. C. Rowe told them he had given all of his children hom.es except Burke, and he was going to give him money, and that when he died he wanted the rest of his property to be divided equally among all his children. The above declarations, while merely hearsay evidence, therefore unsatisfactory, because of the possibility of mistake or failure of memory, if standing alone, might be sufficient to establish an intention to divide his property unequally, but its effect is very much weakened if not destroyed by testimony of various witnesses that they had heard H. C. Rowe say, on different occasions, one while in his last sickness, that he had given all of his children homes but Burke who he gave money, and that he was going to give or wanted Barnes (the infant) to have the “Betts place.” A presumption of law cannot be said to be rebutted where the evidence of equally credible witnesses for and against the presumption is equally balanced. The rebutter has not carried the burden imposed upon him by law. Where the evidence for and against the presumption are equal the presumption will prevail.
But the evidence of E. Hugh Smith, an attorney-at-law, and friend of H. C. Rowe, when he went to consult about making a will, establishes conclusively his real
Therefore, considering the circumstances of Rowe, his relations to his children, the conflicting declarations made about the division of his estate, and his knowledge of the law in regard to advancements, it is conclusively established that his real intention was that his estate should be equally divided as provided by law after his adult children had brought their gifts into hotchpot.
The decree of the circuit court will be reversed and the case remanded for further proceedings in accord with this opinion.
Reversed and remanded.