Gobel v. Kitchen

• Decision Date: 16 December 1924
• Citation: 266 S.W. 992,217 Mo.App. 354
• Parties: LEE GOBEL et al. Respondents, v. E. C. KITCHEN et al., Appellants
• Court: Missouri Court of Appeals

266 S.W. 992

217 Mo.App. 354

LEE GOBEL et al. Respondents, v. E. C. KITCHEN et al., Appellants

Court of Appeals of Missouri, Springfield

December 16, 1924

Appeal from the Circuit Court of Dent County.--Hon. W. E. Barton Judge.

AFFIRMED.

Judgment affirmed.

L. B Woodside and C. C. Cope, both of Salem, for appellants.

(1) An advancement is an irrevocable gift of property by a parent to a child to enable the donee to anticipate his inheritance to the extent of the gift. 14 Cyc. p. 162. (2) In some jurisdictions it has been held that unless the evidence shows to the contrary an advancement is presumed, yet in others it is held that no gift should be deemed an advancement unless expressed in writing, but in all cases there must be an intent to make it an advancement. 14 Cyc. p. 164. (3) We concede that in this State that if there is nothing to show to the contrary that the deed will be presumed to be an advancement but the mere act of making the deed does not make an advancement but it is simply only where there is no explanation that can be gathered from the circumstances, then it may be presumed. 14 Cyc. p. 164. (4) The presumption is one of fact only and not of law, and is easily to be overcome. 14 Cyc. p. 167. (5) The acts and declarations of the donor are admissible to repel the presumption. 14 Cyc. p 168. (6) The presumption may also be repelled by parole evidence showing that the transaction was intended by the donor as a gift. 14. Cyc. p. 168. (7) The rule regulating advancements is to be governed and is controlled by statutory enactment. (8) Section 308 is the only Statutory Provision that we have in regard to advancements, and the rule can only be enforced in an action in partition. (9) Where a child receives the transfer of property and the evidence does not disclose was occurred between the parties at the time, resort must be had to the surrounding circumstances to determine the question whether the parent intended to make an absolute gift or to make an advancement as part of the estate. Stephens v. Smith, 127 Mo. App., 121. (10) Verbal declarations of the parent that he had made an advancement to a child are incompetent when offered in the interest of the estate or others heirs to charge the child specified or to diminish his right to a full share in the estate of a common ancestor. Waddell v. Waddell, 87 Mo.App. 218; Nelson v. Nelson, 90 Mo. 460. (11) But that fact may be disproved by such statements. Waddell v. Waddell, 87 Mo. App, 219. (12) If the consideration is expressed in the deed, there is no presumption of an advancement.

McGee & Bennett, of Salem, and Duty & Duty, of Rogers, Ark., for respondents.

(1) Jurisdiction. This is an equitable proceeding of which the circuit court had jurisdiction; the appellant so considered it and joined issue on the question of advancement and asked for a determination of the court on that issue and cannot now complain. Ford Admr. v. Talmage, 36 Mo.App. 65; Ford Admr. v. O'Donnell, 40 Mo.App. 51; Hopkins v. Thompson, 73 Mo.App. 401; Davis v. Smith, 75 Mo. 219; Frazier v. Crook, 204 S.W. 392; McQuitty v. Steckdaub, 190 S.W. 590; Lietman's Executor v. Lietman, 149 Mo. 121. (2) Evidence. (a) The declarations of deceased to Baker were not in his interest or that of his estate and were admissible; besides it simply showed an intent to perform an act in the future. (b) The declarations of deceased to Baker were admissible for the purpose of showing his mental condition and his feeling for the several objects of his bounty; the only objection to this testimony was a general one and not that it was a declaration in favor of interest. Lefever v. Stephenson, 193 S.W. 840; Koger v. Black, 220 S.W. 904; Rinkle v. Lubke, 246 Mo. 392; Jones v. Thomas, 218 Mo. 543; Hanson v. Neal, 215 Mo. 271. (3) Advancements. (a) When property is given to a child the presumption is that it is to be accounted for in the final distribution and is an advancement and not a gift, and such child has the burden of proving that it was not an advancement. Lynch v. Culver, 168 S.W. 1138; Pitts v. Metzger, 187 S.W. 610; Aylor v. Aylor, 186 S.W. 1068; 26 A. L. R. 1106. (b) There was no competent evidence to rebut the presumption of advancement. The deed recited a valuable consideration and where a valuable consideration is recited such as money, parol evidence is inadmissible to show that the consideration was good instead of a valuable one. Lynch, et al. v. Culver, 260 Mo. 495, 168 S.W. 1138; Yates v. Burt, 161 Mo.App. 267, 143 S.W. 267; Holloway v. Vincent, 143 Mo.App. 434, 128 S.W. 214. (c) The fact that a gift by a parent to a child was because he was a good boy and stayed at home, etc., does not disprove that it was an advancement. Lynch et al. v. Culver, 260 Mo. 495. (d) When a deed recites avaluable consideration and such consideration is not paid it is an advancement. It is conceded that the consideration was not paid by appellant. Lynch et al. v. Culver, 260 Mo. 495.

BRADLEY, J. Cox, P. J., and Farrington, J., concur.

OPINION

BRADLEY, J.

Lee and Helen Gobel, minors, by their guardian brought suit against E. C. Kitchen and his mother, Sarah Kitchen, to determine the character of a conveyance to certain lands in Dent county to defendant E. C. Kitchen. The court found the conveyance to be an advancement, and defendants appealed.

Prior to February 6, 1923, G. C. Kitchen owned five-sevenths of the land conveyed, and defendant E. C. Kitchen owned the remaining two-sevenths. On February 6, 1923, G. C. Kitchen and his wife Sarah conveyed by warranty deed the five-sevenths interest to E. C. Kitchen, their son. The deed recited a consideration of $ 5000, but there was in fact nothing paid. Plaintiffs are the grandchildren of G. C. Kitchen. Their mother, now deceased, was the daughter of G. C. Kitchen by a former marriage. On April 7th after the conveyance in February G. C. Kitchen died, and E. C. Kitchen asserted his claim of entire ownership of the land and this suit followed.

The petition counted upon undue influence unsound mind and an allegation of advancement. The answer put in issue the allegations of the petition. The only question presented for our determination is whether the evidence is sufficient to support the finding that the conveyance to defendant E. C. Kitchen was intended as an advancement. Substantial gifts of money or other property by a parent to a child are presumed to be advancements, and the burden of showing the contrary rests on the party denying the advancement. [Lynch v. Culver, 260 Mo. 495, 168 S.W. 1138, and authorities there cited.] The greater portion of the record here is made up of evidence directed to questions other than the question of advancement. W. H. Haven, the notary who prepared the deed and took the acknowledgment, testified that G. C. Kitchen, the grantor, directed him to state the consideration in the deed at $ 5000, and the deed recited that consideration. G. C. Kitchen stated to the notary that the land was worth $ 7000, and that he owned a five-sevenths interest. Defendant was not present when the deed was prepared and signed, but was present in a few minutes thereafter and heard the deed read over wherein a consideration of $ 5000 was recited. W. H. Baker, a merchant, was a witness for plaintiffs and testified: "Q. Did he (G. C. Kitchen) talk with you about his business affairs? A. Not much. Q. Did he say anything about this farm? A. Yes. Q. Tell the court what he said about this farm. A. He said that was all he aimed for Ed to have. By MR. WOODSIDE. I object to that answer. It is not competent. BY THE COURT: The objection is overruled. To which action of the court defendants excepted. By MR. McGEE: Q. What else was said Mr. Baker, about Ed getting the farm and making a living out of it? A. That is what he said, he aimed for Ed to have the farm, and 'I don't aim for him to have anything else; if he can't make a living out of that farm, he would have to do without it.' BY MR. WOODSIDE: We renew our objection to that question and answer. BY THE COURT: The objection is overruled. Defendants excepted. BY MR. McGHEE: Q. Do you know what his feelings were towards these two children, the plaintiffs in this case? A. I think he thought as much of...