Bartlett v. Bartlett

• Decision Date: 27 May 1884
• Citation: 19 N.W. 691,15 Neb. 593
• Parties: HENRY BARTLETT, PLAINTIFF AND APPELLEE, v. EDWARD BARTLETT AND OTHERS, DEFENDANTS AND APPELLANTS
• Court: Nebraska Supreme Court

19 N.W. 691

15 Neb. 593

HENRY BARTLETT, PLAINTIFF AND APPELLEE, v. EDWARD BARTLETT AND OTHERS, DEFENDANTS AND APPELLANTS

Supreme Court of Nebraska

May 27, 1884

REHEARING of case reported 13 Neb. 456.

AFFIRMED.

O. H Scott and A. R. Scott, for appellants.

Colby & Hazlett (O. P. Mason with them), for appellee.

REESE J. MAXWELL, J., concurs.

OPINION

REESE, J.

This cause was decided at the July term, 1882, of this court, and may be found reported at page 456 of the 13th Neb. Reports. After that decision was announced, a motion for a rehearing was made and sustained and a reargument ordered. The cause was reargued and submitted on the twenty-sixth day of July, 1883, and upon a review of the case the then chief justice, LAKE, and Judge MAXWELL adopted the view which was against the decision on the former hearing. The present chief justice, COBB, who wrote the opinion as reported in 13 Neb. being unable to agree with the majority, the record was placed in the hands of the then chief justice to write the opinion. Probably from a want of sufficient time in which to do so, the record was returned with the opinion unwritten. Chief Justice COBB and Judge MAXWELL being still unable to agree, it devolves upon the writer to examine the case, and from the records and briefs alone, unaided by either of the arguments which have been made, decide it.

The only question as to the soundness of that decision is, whether or not the court was laboring under a mistake as to the facts of the case as shown by the testimony introduced on the trial.

As to the statements of the law contained in that decision and the opinion of the court, we have only to say that we fully agree with them and have no disposition here to question them.

Starting out then with the presumption of a resulting trust, rebutted by the relation existing between the plaintiff and the deceased, his wife, our whole inquiry will be directed toward the proper solution of the question, Does the proof overcome the presumption that the conveyances were intended as an advancement to her?

It is conceded that if objection is made at the proper time the plaintiff was an incompetent witness under the provisions of the law in force at the time of the trial. But that question is not before us. The benefit of the statute can be waived, and in that event the witness becomes competent. The deposition of the plaintiff appears in this record. It is included in the bill of exceptions the same as the testimony of all the other witnesses, and is certified to by the judge who heard the cause. The bill was served upon the appellee, and no amendments are suggested. It was prepared, evidently, under the direction of the appellant, and there is no record of any objection being made to it on the trial, and the appellants quote from it in their brief. The presumption must be that objection to it was waived and that it was read on the trial.

No testimony was introduced on the trial by any of the defendants, the cause being submitted upon the evidence introduced by the plaintiff. While we have given this testimony a careful and critical examination, yet we shall state the conclusions drawn therefrom by us rather than to any great extent quote the testimony of the witnesses.

The plaintiff and the deceased had been married about twenty-eight years. At the time of their marriage the plaintiff had some means. The deceased had none. Their property was acquired by the joint labors of both, the deceased never having received anything excepting from her husband, the plaintiff. They acquired property of considerable value, and had no children, and at the time of the death of the wife of the plaintiff she had neither father, mother, nor child living. If it is shown by the testimony that it was not the intention of either of the parties that the conveyances to the wife were advances to her, but that it was understood by both that she was holding the property in trust for the plaintiff, to be deeded to him or to any other person whom he might direct, at his pleasure, then the presumption in favor of the defense is overcome, and the decree of the district court must stand.

On the trial of the cause the court found, "That the plaintiff, Henry Bartlett, purchased all of the above described real estate for himself, and that the same was paid for by plaintiff out of his own property, and the naked legal title only to the same was placed in Elizabeth Bartlett, deceased, to hold in trust for the use and benefit of the plaintiff, Henry Bartlett."

It is conceded by all, and is unquestionably true, that all the real estate, the title to which was held by Mrs. Bartlett at the time of her death, was purchased by the plaintiff and with his own means. And we think it is just as true that it was the understanding of the deceased during her life-time that she held the title in trust to be conveyed to any person to whom the plaintiff might sell, or in case he did not sell then to him. One witness, Martha Bartlett, testified that the deceased told her "she was only holding the property for a time, and she should deed it back to Henry Bartlett, the plaintiff, or anyone Mr. Bartlett should sell to." Another one, Mrs. Titus, testified that she was on very familiar relations with the family, and that at one time she was jesting with the deceased about an affliction from which the plaintiff was suffering. The witness says: "I said that if Mr. Bartlett should die it would leave the property in good shape and she would not have to go into court with it. Mrs. Bartlett said it would not make any difference, that if Henry Bartlett should not live why she would not have the trouble to deed it back to him when they got settled with Capt. Hill, and I would go right straight and deed it to our Edward, and would live with him. We had another conversation afterwards about some other land which had been deeded to her, and she said she would deed it to him or anyone else that Mr. Bartlett wanted her to. She said she did not want the property in her name, and that she had a great deal rather Mr. Bartlett had deeded it to Edward instead of her, for fear some one would think they were trying to rob some one. While she was sick in bed I went down to see her. She had been sick only a day or two. I asked her how she was, and she said she thought she felt some better, but Mr. Bartlett had gone after a girl. She said she thought she had typhoid fever. She says, if the doctor says it is the typhoid fever I wish you would speak to Henry Bartlett when he gets back, and have him get the property fixed up, as it might cause him some trouble if anything should happen."

These declarations were made by her while she was the holder of the title, in disparagement thereof, and were she living they would be competent evidence against her. They are...