Calhoun v. Taylor

• Decision Date: 18 October 1916
• Docket Number: 30932
• Citation: 159 N.W. 600,178 Iowa 56
• Parties: MARY E. CALHOUN, Appellee, v. L. L. TAYLOR, Administrator, et al., Appellants
• Court: Iowa Supreme Court

159 N.W. 600

178 Iowa 56

MARY E. CALHOUN, Appellee, v. L. L. TAYLOR, Administrator, et al., Appellants

No. 30932

Supreme Court of Iowa, Des Moines

October 18, 1916

Appeal from Appanoose District Court.--FRANCIS M. HUNTER, Judge.

G. N WAILES died September 25, 1913, leaving eight children him surviving, and three children of a deceased son, William. After the payment of all debts, funeral expenses and the costs of administration, there remained for distribution $ 4,445.05, and there were 80 acres of land in Republic County Kansas. On June 26, 1912, he had conveyed 80 acres in said county to each of the following children: Rebecca Horner Emma Shoemaker, Samuel Wailes and L. C. Wailes. The consideration named in each of the deeds was $ 4,000. On October 1st following, he conveyed to Josephus Wailes 41 acres of land in Section 15, Township 69 north, Range 19, in Appanoose County, $ 4,000 being recited as the consideration the grantor reserving the use and possession during life. He then conveyed to James A. Wailes 60 acres in Section 26 of the same township, reciting therein a consideration of $ 3,000, reserving the use and possession during life; also conveyed to Sylvester Wailes another 80 acres in Section 15, with the consideration named as $ 4,000. Prior thereto, and on April 19, 1898, he had executed a conveyance to James A. Wailes of 80 acres, reciting a consideration of $ 3,000, and containing the following:

"$ 1,000 of the before named consideration given to the grantee therein, who is my son, which is an advancement to him in full of his interest as heir in my estate either at this or any future time. I, James Wailes, grantee, hereby accept the $ 1,000 hereinbefore stated in full of my interest in my said father's estate."

It also appears that, at the time of executing the respective deeds, Sylvester Wailes paid to his father $ 450; L. C. Wailes, $ 500; Samuel Wailes, $ 100; Mrs. Horner, $ 100; and Emma Shoemaker, $ 100; and that deceased had paid the plaintiff $ 3,350. Nothing appears to have been paid Charles, Flossie or Hazel Wailes, the children of decedent's deceased son, William. The plaintiff, Mary E. Calhoun, filed a petition, April 18, 1914, making the administrator and all the heirs parties defendant, alleging, in substance, the facts before recited, and prayed that said conveyances be treated as advancements by the decedent and applied on the respective shares in the estate of those receiving them; that said advancements be added to the property left by decedent in ascertaining the extent of the estate; and that the estate undisposed of be distributed accordingly. C. R. Porter was appointed guardian ad litem for Hazel Wailes, who was a minor, and joined the plaintiff in her petition and prayer. The defendants, other than Hazel Wailes, pleaded that the conveyances were made by decedent in distributing his estate and were intended as gifts, and therein decedent had carried out his design, except as to the children of William Wailes, which he was prevented from doing by his sudden death, and that, prior thereto, he expressed a desire that $ 4,500 be paid said children as their share; and they prayed that the petition be dismissed and payment be made to said children in accordance with decedent's wishes, and that any property remaining be equally divided according to law. The court fixed the values of the property conveyed to the several children, held these to have been advancements, and ordered that the estate be settled accordingly. The defendants appeal.

Affirmed.

L. C. Mechem and H. E. Valentine, for appellants.

C. W. Hoffman, Porter & Greenleaf, for appellee.

LADD, J. EVANS, C. J., GAYNOR and SALINGER, JJ., concur.

OPINION

LADD, J.

The issue tried was whether conveyances executed by decedent to six of his children and money given another should be treated as advancements or be regarded as absolute gifts. He died September 25, 1913, well advanced in years. Four of the deeds were executed June 26, 1912, and the other two, October 1st following. He died seized of 80 acres of land, and there remained of his personal estate for distribution $ 4,445.05. The cause was tried as at law, and is here reviewed on errors assigned.

I. Several witnesses, after qualifying, were asked to state the market value of land alleged to have been conveyed by way of an advancement, at the time of such conveyance, also at the time of decedent's death, and some testified to values at the time of the trial. Those speaking of values at the time of the trial estimated, in connection therewith, the rise in value since decedent's death, and in that way rendered the evidence relevant. Proof of the values of the several tracts at the time conveyed was admissible as bearing on the intent of the grantor in making the conveyances. Evidence of the values of the several tracts, if retained by the grantee, about the time of decedent's death, in the same condition as when conveyed, was admissible; for such values were the measure of the respective advancements, if held to be such. Finch v. Garrett, 102 Iowa 381, 71 N.W. 429; Eastwood v. Crane, 125 Iowa 707, 101 N.W. 481. Such were the rulings of the trial court, and they are approved.

II. The inventory and appraisement of the personal property left by decedent, claims filed and the annual report of the administrator, showing full settlement of the estate and the amount on hand, were received in evidence over objection, and rightly so. This was for the purpose of showing that there was property in the hands of the administrator, available in connection with advancements for equalization among the several children.

III. The husband of plaintiff testified to having heard a conversation between decedent and plaintiff, in which he (the witness) took no part, and in which decedent said, in substance, that plaintiff should have as much out of the estate as other children; that he had given them land and had given her money; and that he wanted his property equally divided. On cross-examination, it appeared that the witness had engaged in conversation with decedent on other subjects while at the table, but had not participated in that concerning his dealings with his children. That the witness may have spoken with decedent on some other subjects disconnected from the conversation exclusively between father and daughter did not preclude him from testifying to what was said in the latter. The test is whether the witness objected to as incompetent took part in the particular conversation on the subject inquired about, and if he did not, his testimony is to be received for what it is worth. Dettmer v. Behrens, 106 Iowa 585, 76 N.W. 853; McElroy v. Allfree, 131 Iowa 112, 108 N.W. 116; McBride v. McBride, 142 Iowa 169, 120 N.W. 709. Tebbs v. Jarvis, 139 Iowa 428, 116 N.W. 708, is not inconsistent with this conclusion, for there the evidence disclosed that the communication excluded was directly to the witness ruled to be incompetent.

IV. A nephew of decedent testified to having had a conversation with him "a little while before his death," and was then asked, "What was said by your uncle in reference to what he had done with his property?" An objection as incompetent and not connected with the res gestae was sustained. Counsel for defendants then stated what they proposed to prove, and the ruling was not changed. This was excluded. Like inquiries and rulings occurred in examining several other witnesses. What decedent may have said after the execution of the deeds, in no manner connected with the res gestae, according to the ruling in Ellis v. Newell, 120 Iowa 71, 94 N.W. 463, was rightly excluded.

V. Josephus Wailes, after testifying that he gave his father a deed to 80 acres of land in Kansas and received from him the conveyance of 80 acres of land in Appanoose County, was asked what, if anything, decedent had said concerning the reason for wanting to make the exchange. An objection that the witness was incompetent to testify under Section 4604 of the Code was sustained. Thereupon, counsel for defendants stated what was proposed to be proven. Somewhat similar questions were propounded to Sylvester and L. C. Wailes, and like rulings made. This is said to have been error, for that the administrator was a party defendant and joined the other defendants in their answer, and it is said that, inasmuch as the witnesses were called by the administrator, the prohibition of the statute was thereby waived, and they should have been permitted to answer. Such is undoubtedly the rule where the administrator is the real party in interest. Dean v. Carpenter, 134 Iowa 275, 111 N.W. 815; Frick v. Kabaker, 116 Iowa 494, 90 N.W. 498.

But the administrator was indifferent as between the parties and not interested in the outcome of the litigation. The evidence tendered was in no sense against the administrator as such. Counsel for appe...