Fletcher v. Yates

• Decision Date: 28 November 1922
• Citation: 211 P. 179,105 Or. 680
• Parties: FLETCHER v. YATES ET AL.
• Court: Oregon Supreme Court

211 P. 179

105 Or. 680

FLETCHER v. YATES ET AL.

Supreme Court of Oregon

November 28, 1922

Department 1.

Appeal from Circuit Court, Washington County; George R. Bagley Judge.

Action by David Fletcher against Lela Yates and another. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

J. H. Kelley, of Portland (Thomas H. Tongue, Jr., of Hillsboro, on the brief), for appellants.

R. F. Peters, of Hillsboro (Hare, McAlear & Peters of Hillsboro, on the brief), for respondent.

BURNETT C.J.

In substance, the complaint is that on June 6, 1919, the plaintiff conveyed certain lands in Washington county to the defendants for the consideration of $2,000; that they agreed to pay that amount to the plaintiff in cash upon the delivery of said deed; that the deed was delivered at that date and recorded; but that the defendants have failed, neglected, and refused to pay the money, or any part thereof. The defendants admit that on the date mentioned the plaintiff executed and delivered to them a deed conveying the real property in question, in which instrument a consideration of $2,000 was mentioned, but they deny that the actual consideration was that amount of money or any other sum, and deny that they promised or agreed to pay any money to the plaintiff.

For affirmative matter in their answer the defendants disclose that they are husband and wife, and that the wife, Lela Yates, is the plaintiff's daughter. They aver that in 1908 the plaintiff and his wife, the mother of the defendant Lela, resided at Sherwood in Washington county and the defendants were living at Kellogg, Idaho; that at the request of the plaintiff and upon his promise that he would leave to the defendants all of his property, they moved from Kellogg, Idaho, some time in March, 1908, to Sherwood, and took up their residence upon a place adjoining the home of plaintiff and his wife; that from that time forward until February 28, 1918, they administered to the wants and comforts of plaintiff and his wife, who both were advanced in years; and that after the death of plaintiff's wife he resided with them upon the premises in controversy, from March 1, 1918, until July 28 of the following year. The concluding allegation of the answer is as follows:

"That on the 6th day of June, A. D. 1919, and for the purpose of making a gift and advancement to the above-named defendant, Lela Yates, his daughter, the above-named plaintiff voluntarily made, executed, and delivered to these defendants, for the considerations above mentioned and not otherwise, the deed mentioned in plaintiff's complaint conveying to these defendants the property mentioned in plaintiff's complaint, and that these defendants ever since have been and now are the owners in fee simple of and in possession of said premises."

The plaintiff moved to strike out the defendants' amended answer, but the court denied the motion, requiring them, however, to elect whether they would rely as a defense upon a gift or an advancement, and they chose to rely upon the latter. After some minor denials of new matter in the answer not important to be considered, the reply concluded with a traverse of all of the paragraph with which the answer concluded, and which is above quoted. The plaintiff offered the deed mentioned in evidence, which was admitted without objection. The opening clause of that paper is as follows:

"Know all men by these presents that David Fletcher, widower, of Sherwood in the state of Oregon, in consideration of two thousand dollars to him paid by Lela Yates and John E. Yates, wife and husband, of Sherwood, in the state of Oregon, do hereby grant, bargain, sell and convey unto said Lela Yates and John E. Yates their heirs and assigns all the following bounded and described real property," etc.

He also testified to the effect that he executed the deed and delivered it to the defendants, and that they were to pay him $2,000 therefor. The defendants moved for a nonsuit at the close of the plaintiff's case in chief, but this was denied. In defense they offered much oral testimony of witnesses, to whom the plaintiff had said that he had given the land in question to his daughter and her husband. At first, the court admitted this testimony, but afterwards struck it all out, and refused to admit any other testimony of the same kind. This, in various forms, is the principal assignment of error made by the defendants.

At the conclusion of the whole testimony, the defendants moved the court to direct the jury to find a verdict in their favor, and this was denied. The plaintiff also moved for a directed verdict according to the prayer of his complaint, and this was allowed. From the ensuing judgment the defendants appeal.

The law in this state respecting advancements is part of the act of October 24, 1864, entitled "An act to regulate the descent of real property and the distribution of personal property of deceased persons." It was first codified as chapter 10 of the General Laws of Oregon, as compiled by the late Judge Deady. It is found in sections 7, 8, 9, 10, 11, and 12, title 3, of that chapter. Section 7 declares in substance that any property, real or personal, that may have been given by the intestate in his lifetime as an advancement to any child shall be considered as part of his estate in respect to the distribution thereof among his issue, and shall be taken by such child towards his share of the intestate's estate. The succeeding section lays down the rule that if the amount of the advancement exceeds the share of the heir so advanced, such heir shall be excluded from any further share or portion in the division or distribution, but shall not be required to refund any part of such advancement; and if the amount so received shall be less than his share, such heir shall be entitled to so much more as will give him his full share or portion of the intestate's estate. Section 9 relates to the valuation of real property. Section 10 is the one deemed most important in this examination, and reads thus:

"All grants and gifts shall be deemed to be made in advancement, if so expressed in the grant or gift, or if so charged, in writing, by the intestate, or acknowledged, in writing, to be so made by the child or other descendant to whom it is made, and not otherwise."

The other sections treat of matters not here involved. All of them appear in sections 10131 et seq., Or. L. It will be noted that these provisions relate to the descent of real property of an intestate, as the title of the original act indicates.

In all cases two things must concur to work out the result of advancement: First there must be a gift from a living parent to a living child; and, second, this must be followed by the intestacy of the ancestor. "Gifts by a parent to a child cannot be deemed advancements so long as the donor is alive, because it is merely as auxiliary to the distribution of decedents' estates that the question is raised." 18 C.J. 918.

Owsley v. Owsley, 77 S.W. 394, 25 Ky. Law Rep. 1194, was a case between a living father as plaintiff and his son and the wife of the latter as defendants, in which the former contended that gifts from him to the son were to be treated as advancements. The court there said:

"Strictly speaking, whatever may have been the nature of the payments made by appellant [the father], and whatever may have been his purpose at the time, they cannot be 'advancements' so long as the appellant is alive. An advancement is that bestowment of property by one standing in loco parentis to another, in anticipation of the latter's share in the donor's estate. It may in one sense be a gift. But its treatment in law as an advancement depends upon two facts--one, that the donor shall die intestate, totally or partially; the other, that the gift shall have been in fact with a view to a portion or settlement in life upon the donee. * * * Though the donor may have intended it as a gift, not to be charged in the settlement of his estate, it will nevertheless be treated as an advancement, if he die intestate, if it is in fact of the nature fixed by the statute. The donor's purposes in the matter can be made effectual only by his leaving a will disposing of all his estate, and therein treating of the gift. Still that transfer by the parent which may or may not be an advancement need not create a debt, either." Biedler v. Biedler, 87 Va. 300, 12 S.E. 753; Grattan v. Grattan, 18 Ill. 167, 65 Am. Dec. 726; Gilmore v. Jenkins, 129 Iowa, 686, 106 N.W. 193, 6 Ann. Cas. 1009; Jaques v. Swasey, 153 Mass. 596, 27 N.E. 771, 13 L. R. A. 568; Needles v. Needles, 7 Ohio St. 432, 70 Am. Dec. 85; Allen v. Allen, 13 S.C. 512, 36 Am. Rep. 716.

The doctrine is that an advancement is not called into operation as such until the donor shall have died at least partially intestate. It affects only the distribution of the estates of intestates. Until the death of the donor intestate shall have happened, the property can only be a gift from a parent to a child, or at least to one towards whom he occupies the place of a parent, as taught by some of the precedents. Primarily it is always a gift which may or may not ripen into an advancement, as the post mortem event of intestacy may prove. The...