Ellis v. Newell

• Decision Date: 10 April 1903
• Citation: 94 N.W. 463,120 Iowa 71
• Parties: COLUMBIA ELLIS et al Appellees, v. SAMUEL NEWELL, Appellant AND FLORA NEWELL et al Defendants
• Court: Iowa Supreme Court

94 N.W. 463

120 Iowa 71

COLUMBIA ELLIS et al Appellees, v. SAMUEL NEWELL, Appellant AND FLORA NEWELL et al Defendants

Supreme Court of Iowa, Des Moines

April 10, 1903

Appeal from Wapello District Court.--HON. M. A. ROBERTS, Judge.

SUIT in equity for the partition of real estate. From a decree finding that a conveyance of land from a common ancestor to defendant Samuel Newell was an advancement, he (Newell) appeals.

Affirmed.

W. R Wilson and McNett & Tisdale for appellant.

Jaques & Jaques for appellees.

OPINION

DEEMER, J.

T.

J Newell died intestate, August 19, 1900, seised of five hundred and eighty-eight acres of land in Wapello county Iowa. He left surviving a widow, Margaret Newell, who is defendant in this case, ten children, nine of whom were daughters, seven of these being plaintiffs in the case and two defendants, and one son, Samuel, who is appellant. The action was brought to partition the lands belonging to the deceased at the time of his death. The widow's distributive share seems to have been determined in probate before this action was tried; but an appeal was taken by plaintiffs from the order allotting her share.

In January of the year 1900, T. J. Newell bought of one Dolts ninety-three and one-half acres of land, paying him $ 3,500 therefor, but the title to the land was taken in the name of Samuel, who held it at the time of trial. The deed conveying the property is an ordinary warranty deed, for the consideration heretofore named, and it expressly recites that the consideration was paid "by T. J. Newell for Samuel Newell." Plaintiff contended, and the trial court found, that this constituted an advancement to Samuel, which should be taken into account in making the partition.

Samuel Newell contends that the transaction was a gift, and that in addition thereto he should receive a share of the real estate. The value of the estate, after deducting the widow's share and other charges, is about $ 20,000, so that if the purchase price for the Dolts land is treated as an advancement Samuel Newell has already received something like $ 1,000 more than his share. The issue between the parties is thus sharply defined, and the law involved is well understood, except as it bears upon the admissibility of evidence in cases of this character. The nature of an advancement has been so often stated that we need not take up space with a definition of the term. Moreover, it is now well established doctrine in this state that a voluntary conveyance from parent to child is presumed to have been an advancement, and the burden is upon him who claims it to have been a gift to prove it.

The gist of the whole matter is the intent of the donor at the time of the transfer, and this may be established by his declarations prior to the time of the transfer or contemporaneous with it. Middleton v. Middleton, 31 Iowa 151; Phillips v. Phillips, 90 Iowa 541, 58 N.W. 879; Cline v. Jones, 111 Ill. 563; Merkel's Appeal, 89 Pa. 340; Eastham v. Powell, 51 Ark. 530 (11 S.W. 823); Powell v. Olds, 9 Ala. 861. But such declarations, like other admissions, are generally regarded as unsatisfactory evidence on account of the ease with which they may be fabricated, the impossibility of contradiction, and the consequences which the slightest mistake or failure of memory may produce. Baker v. Leathers, 3 Ind. 558; Martin v. Town of Algona, 40 Iowa 390. Whether or not subsequent declarations made to a stranger are admissible is a proposition on which the authorities are in hopeless conflict. When so close to the main transaction as to be part of the res. gestae they are no doubt competent, and whenever it may be said that they are against the interest of the declarant they are doubtless admissible. The character of the transaction is fixed when made; although an advancement may be changed to a gift. Sherwood v. Smith, 23 Conn. 516. But a gift cannot be converted into an advancement simply by the will of the donor. Lawson's Appeal, 23 Pa. 85.

Samuel Newell is relying upon certain declarations made by T. J., his father, long subsequent to the conveyance, tending to show that the transaction was a gift. The declarations were not part of the res gestae, and, if admissible at all, the evidence being hearsay, it must be because such declarations were against interest. There are cases holding that they are. Gunn v. Thruston, 130 Mo. 339 (32 S.W. 654); Watkins v. Young, 72 Va. 84, 31 Gratt. 84; McDearman v. Hodnett, 83 Va. 281 (2 S.E. 643); Autrey v. Autrey's Adm'r., 37 Ala. 614. But we do not regard these cases sound on principle or sustained by authority. The interest of the declarant, which makes his derogatory admissions or statements admissible, is a pecuniary or proprietary one, and even in such cases these declarations are not generally received when the title of a third person is involved. Westcott v. Westcott, 75 Iowa 628, 35 N.W. 649; Greenleaf Evidence (14th Ed.) section 147; County of Mahaska v. Ingalls, 16 Iowa 81; Moehn v. Moehn, 105 Iowa 710, 75 N.W. 521.

Were the declarations said to have been made in this case by T. J. Newell after the deed to Samuel statements derogatory to any pecuniary, or proprietary interest held by him in the property? We think not. An advancement is a gift, and after it is made the donor has no interest whatever therein, although, as we have said, he might doubtless have converted it into a simple gift. But there is no claim in this case that he did so, and all the testimony offered had reference to the donor's intention at the time the deed was made. Whether gift or advancement, the donor lost all pecuniary interest in the property.

The only parties in interest in such cases are the survivors of the donor. They, of course, had an interest in knowing whether or no the property should be brought into hotchpot or treated as a pure gift, but the donor had no further pecuniary or proprietary interest in it. Under the statutes of this state advancements for the purpose of distribution and division are treated as part of the estate, but for no other purpose. The donee cannot be required to refund any portion thereof, nor can they be taken for debts. Code section 3383. Indeed, they create no right of property in the estate. In re Will of Miller, 73 Iowa 118, 34 N.W. 769. T. J. Newell never at any time owned the property in this case. The conveyance was from Dolts to Samuel Newell, and the transaction was either a resulting trust, a gift pure and...