Burton v. Baldwin
| Citation | 16 N.W. 110,61 Iowa 283 |
| Parties | BURTON v. BALDWIN ET AL |
| Decision Date | 12 June 1883 |
| Court | Iowa Supreme Court |
Appeal from Mahaska Circuit Court.
LEONORA BURTON, grandchild and one of the heirs at law of Thompson Baldwin, deceased, commenced this action for partition of about four hundred acres of land, of which said Baldwin died seized. The widow of Thompson Baldwin and his three children Marley and Sylvester Baldwin and Nancy M. Hull, are made parties defendant. The petition alleges that Thompson Baldwin conveyed to each of his said children advancements out of his real estate, and prays that these be considered in making partition. Pending the suit, Leonora Burton died, and Melker Burton, her husband and sole devisee, was substituted as plaintiff. The court found that the conveyances by Thompson Baldwin to his children were gifts, and not advancements and, after setting off the widow's dower, divided the remainder of the lands equally between the other defendants and the plaintiff. The plaintiff appeals.
REVERSED.
John F Lacy and W. R. Lacy, for appellant.
M. E. Cutts, Lafferty & Johnson and Williams & McMillen, for appellees.
I. The evidence shows clearly that Thompson Baldwin conveyed to each of his three children, the defendants, one hundred and forty acres of land, for the expressed consideration of $ 3,300. It also clearly appears that they paid no consideration for the conveyance. Whether these conveyances were intended as gifts or advancements, is the only question involved in the case. Mrs. Sophronia Baldwin, widow of Thompson Baldwin, was made a party defendant, for the purpose of ascertaining and assigning her dower, and she was a necessary party to the proceeding. The other defendants took her deposition, and proved by her certain declarations of the deceased, made to her about the time of executing the conveyances to the defendants, and subsequently thereto, tending to prove that the conveyances were intended as gifts, and not as advancements. The testimony was objected to as incompetent. This deposition was filed on the seventeenth, and the motion to suppress it was filed on the twenty-sixth, day of February. It is claimed that the motion cannot be considered because made too late, under the provisions of section 3751 of the Code, requiring objections, other than for incompetency or irrelevancy, to be made by the morning of the second day of the first term held after the depositions have been filed, if they have been filed for three days prior thereto. The objections insisted upon are based upon section 3639 of the Code, and are for incompetency, and do not, therefore, fall under the provision of section 3751. Section 3639 of the Code provides that no party to any action or proceeding, and no husband or wife of any such party, shall be examined as a witness in regard to any personal transaction or communication between such witness and a person at the commencement of such examination deceased, against the heir at law of such deceased person. This section, we think, renders the testimony of Sophronia Baldwin, objected to, incompetent. She is a party to the action, her testimony relates to a personal communication between herself and a person now deceased, and is given against the heir at law of such deceased person. It is true, she has no interest in common with the other defendants against the plaintiff, but such adverse interest does not seem to be necessary in order to the exclusion of the testimony. In Blood v. Fairbanks, 50 Cal. 420, a party who had no interest against the executor was excluded as a witness, under a statute substantially the same as ours. See also, as bearing by analogy upon the question under consideration, Eckford v. Dekay, 6 Paige's Ch. 565; Woodhouse v. Simmons, 73 N.C. 30; Taylor v. Kelly, 80 Pa. 95. The appellee cites and relies upon Baker v. Kellogg, 29 Ohio St. 663. The decision in that case was made under a statute which renders a party incompetent to testify where the adverse party is an executor or administrator, or one claiming as heir of a deceased person. The decision is based upon the language of the statute, which is materially different from ours. The appellees insist, however, that, at the time the deposition of Sophronia Baldwin was read in the case, her dower had been determined, and she was no longer a party to the proceeding, and that her testimony is competent, under the doctrine of Markham v. Carothers, 47 Tex. 21; Hayden v. McKnight, 45 Ga. 147; and Simpson v. Bovard, 74 Pa. 351. Whatever may have been the position of the witness at the time the testimony was offered,...
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