Cliff v. Cliff

• Decision Date: 16 December 1912
• Parties: CLIFF v. CLIFF.
• Court: Colorado Court of Appeals

128 P. 860

23 Colo.App. 183

CLIFF v. CLIFF.

Court of Appeals of Colorado

December 16, 1912

Appeal from District Court, City and County of Denver; Hubert L Shattuck, Judge.

Suit by Grace Ann Cliff against Annie Cliff to enforce a resulting trust. From decree for plaintiff, defendant appeals. Reversed and remanded.

Gaines M. Allen and Talbot, Denison & Wadley all of Denver, for appellant.

Wm. T Rogers and J.A. Harris, both of Denver, for appellee.

MORGAN J.

Grace Ann Cliff, the only living child of William Cliff, deceased, filed a suit in equity in January, 1908, against Annie Cliff, William's third wife, to enforce a resulting trust upon the real estate involved in this suit of which Annie was in possession, and an undivided one-half interest in which she claimed to own as the widow of William Cliff, who died in January, 1907, and his joint heir intestate with Grace. Grace is the only child of William and his first wife, Mary Cliff, who were divorced in September, 1884. The second wife was Sarah, who died in July, 1893, with the property in controversy of record in her name. At the time this suit was begun all these persons were dead except Annie and Grace. It is conceded that Grace is entitled to a half interest in the property as the only child, but she claims it all by reason of a certain alleged agreement between Sarah and William occurring during Sarah's last sickness. Grace alleges in her complaint that a few days before her stepmother, Sarah, died, she expressed a desire to convey this property to her, but was prevented from doing so on account of a promise then made by William that he would do it, as he would be the sole heir of Sarah, and would inherit the property, if she should die. It is conceded that, if these allegations were true, a resulting trust would be created in favor of Grace that would follow the property and divest Annie of all interest in it. The lower court found in Grace's favor, and entered a decree giving her the entire property. Annie appeals.

Appellant's principal contention relates to the statutes of limitation and the doctrine of laches in equity, pleaded in defense, and incidentally the ruling of the lower court in admitting the testimony of Grace as to when she first learned of her right to claim the land in controversy. Her testimony bears directly upon the applicability of such defenses, and helps to determine the time when the cause of action accrued and within which the suit should have been begun.

Under our statute concerning witnesses it was error to permit Grace to testify in her own behalf. At common law a party to a suit could not testify at all in his own behalf, and, while our statute has changed this rule of the common law, certain exceptions are still provided for. Sections 7266 and 7267 Rev.St.1908 (sections 4816 and 4822, M.A.S.). After stating, in section 7266, that "neither parties nor other persons who have an interest in the event of an action or proceeding shall be excluded," the statute, in section 7267, provides: "That no party to any civil action, suit or proceeding, or person directly interested in the event thereof, shall be allowed to testify therein, of his own motion, or in his own behalf, by virtue of the foregoing section, when any adverse party sues or defends as the trustee or conservator of an idiot, lunatic or distracted person, or as the executor or administrator, heir, legatee or devisee of any deceased person, or as guardian or trustee of any such heir, legatee or devisee; unless when called as a witness by such adverse party so suing or defending, and also, except in the following cases, namely: First. In any such action, suit or proceeding, a party or interested person may testify to facts occurring after the death of such deceased person." Annie was defending as the heir at law of her deceased husband, and Grace was suing her for the property, not as an heir at law of her father, but as the beneficiary under the trust created by her stepmother, Sarah, and under the plain words of the statute she was not a competent witness to testify in her own behalf to any fact, unless it occurred after the death of her father. Her testimony was that she first learned of her right to claim the land the week after her father's death, and that she never had any knowledge of it prior to that date. This was testimony to a fact, her lack of knowledge, existing prior to and not after the death of her father. Appellee invokes the exception stated in Pigg v. Carroll, 89 Ill. 205, where the distinction is made that in a controversy among the conceded heirs or distributees of an intestate estate concerning advancements the heirs are competent witnesses for and against each other. The same rule is discussed in Laurence v. Laurence, 164 Ill. 367, 45 N.E. 1071, and in Re Estate of Maher, 210 Ill. 160, 71 N.E. 438, but the question here is not the distribution of the half interest in controversy between Grace and Annie; but, who is entitled to it, as between the claim of Annie, as heir at law, and Grace, as a beneficiary of the resulting trust. It is conceded that Grace inherited one half of the property, hence the controversy is over the other half, Annie defending as heir at law and Grace claiming as beneficiary under the resulting trust aforesaid, and not as an heir. Grace is a stranger to the disputed half of the acre in controversy, and, if her father were living, his testimony might contradict her. It seems almost incredible, too, that she never...