Graves v. Spedden

• Decision Date: 13 June 1877
• Citation: 46 Md. 527
• Parties: EDWARD GRAVES and CAROLINE E. GRAVES, his Wife, and others v. WILLIAM SPEDDEN and MARY E. SPEDDEN, his Wife, and others.
• Court: Maryland Court of Appeals

46 Md. 527

EDWARD GRAVES and CAROLINE E. GRAVES, his Wife, and others v. WILLIAM SPEDDEN and MARY E. SPEDDEN, his Wife, and others.

Court of Appeals of Maryland

June 13, 1877

APPEAL from the Circuit Court for Dorchester County, in Equity.

The case is stated in the opinion of the Court.

The cause was argued before BARTOL, C.J., MILLER and ALVEY, J.

S T. Milbourne and Wm. Shepard Bryan, for the appellants.

It is a presumption of law that the gifts to the appellees were advancements; and it is incumbent on them to repel this presumption by competent and credible proof. Clarke vs Willson, 27 Md., 693.

The evidence offered to repel this legal presumption consisted entirely of declarations attributed to the deceased, which were not made at the time of the gifts. This evidence was incompetent, and was excepted to. Clarke vs. Willson, ubi supra.

The testimony of the appellees is excepted to, likewise, on the special ground, that it contravenes the Act of 1868, chapter 116. The direct and special object of the petition was to establish these gifts as advancements. The inquiry was whether they had any effect whatever upon the distribution of the residue of the decedent's estate. The petitioners maintained that they operated to exempt it pro tanto from the claims of the donees to a distributive share. And the testimony of the appellees, after the death of an original party to the transaction, was intended to establish for them by virtue of their evidence, a claim on this residue, which they could not have by the force and effect of the gifts themselves standing alone.

The only testimony offered by the appellants, which was excepted to, was that of Graves and Mrs. North. They were not parties to any transaction with the deceased, and therefore their evidence is not excluded by the Act of 1868, ch. 116. The other evidence of the appellants shewed an anxious desire on the part of the decedent, that his property should be equally divided between his heirs-at-law, and rebutted and contradicted the evidence which sought to shew that these gifts were not advancements. But if the appellees' testimony is incompetent, the appellants needed no evidence whatever; the law declares the gifts to be advancements.

The declarations of the deceased were admissible only as part of the res gestæ; and they do not come within the rule on this subject. 1 Greenleaf Ev., sec. 110; Lund vs. Tynborough, 9 Cushing, 36; Commonwealth vs. Howard, 4 Gray, 41.

The gifts were contracts executed, (2 Blackstone, 443;) Fletcher vs. Peak, 6 Cranch, (S C.,) 136-7, and were as much within the prohibition of the Act of 1868, as the gift in Johnson vs. Heald, 33 Md., 352.

D M. Henry and Sullivane, for the appellees.

1. There are facts and circumstances disclosed in the testimony, and not excepted to, sufficient to show conclusively that the gifts of the intestate, in his life-time, to the appellees, were not by way of advancement, but intended to be absolute. These facts and circumstances appear on the face of the conveyance to his sons, in the admission of facts, and in acts and declarations not expressing intention, testified to by the witnesses, from which the donor's intention can be clearly inferred. 1 Greenleaf, 287 and 289, approved in Warner vs. Miltenberger's Lessee, 21 Md., 264.

2. The declarations of the donor to Robert B. Spedden, are clearly admissible and of controlling effect. They are so nearly connected with the conveyance and gift as to form part of the res gestæ. Both antecedent and subsequent acts and declarations may form part of the res gestæ. It is not essential that they should be exactly contemporaneous with the principal transaction. Holb vs. Whiteley, Trustee, 3 G. & J., 188; Handy & Tull vs. Johnson, 5 Md., 450; McDowell, et al. vs. Goldsmith, 6 Md., 319; Central of Bank of Fredk. vs. Copeland and Wife, 18 Md., 305; Cooke, Garn. vs. Cooke, 43 Md., 522; Walton vs. Green, 1 Car. & Payne, 498; 2 Bingham, 99; Milford vs. Billingham, 16 Mass. Rep., 108; Mitchem vs. State, 11 Georgia Rep., 627, approved in Shareswood's Notes on Starkie on Evidence, m. p, 89; Phillips on Ev., note 552, p. 590; 1 Greenleaf on Ev., sec. 108.

3. Antecedent and subsequent declarations of a donor, as to his intent, are inadmissible when the question is advancement, vel non. Declarations a long time antecedent to the principal transaction, have been admitted to impeach a conveyance for fraud. Cooke, Garn. vs. Cooke, 43 Md., 522.

Declarations made through a series of years, both antecedent and subsequent to the execution of a paper, have been received for the purpose of establishing it as a will. Devecmon vs. Devecmon, 43 Md., 335; see also, Lungren, et al. vs. Swartzwelder, et al., Ex'rs, 44 Md., 482.

A fortiori, should such declarations be competent, when offered neither to establish nor to impeach the validity of a conveyance or gift, nor to affect the title of the grantee or donee, nor to vary, contradict or add to the terms of a written instrument, but solely for the purpose of showing the donor's intention collaterally, in order that the nature of the conveyance or gift may be considered in the division and distribution of property not embraced in it, of which the donor afterwards dies seized and possessed, intestate. Besides, an advancement is convertible into an absolute gift by the sole act of the donor, at any time before his death. Upon what principle then in such case, could subsequent acts and declarations be excluded, if offered to prove the intent to convert? And if admissible for such a purpose, why not admissible also for the purpose of showing the intent of an antecedent conveyance or gift, and to rebut the presumption of advancement, which without such explanation would arise? The case of Wheeler vs. Wheeler, 47 Vermont Rep., 637, and the cases therein referred to, establish by unanswerable reasoning, the convertibility of an advancement into an absolute gift, and show that this may be accomplished by sufficient entries, (technically mere parol,) in his account-book, made by the donor alone, twenty years after the delivery of the property to be affected.

MILLER J., delivered the opinion of the Court.

By this record it appears that John Spedden died in August, 1873, intestate, leaving four sons, five daughters, and the children of two deceased daughters as his sole heirs-at-law and distributees of his personal estate. In January, 1874, a bill was filed by the eldest son for a sale, for the purpose of partition of certain real estate of which his father died seized and possessed, and to this bill all the other heirs-at-law were made defendants. No question is made as to the necessity of a decree for the sale of this property, but the daughters and adult grandchildren aver in their answers, that the three sons, Robert, William and Charles, were advanced by their father in his life-time by the conveyance to them of his "Home Farm," and that Hugh, the other son, had borrowed of his father $1500 secured by his notes which his father in his life-time destroyed, with a view of giving this sum of money to Hugh as an advancement, and they ask that these advancements may be brought into the estate for division with the other property, and that the sons may be excluded from any participation in the proceeds of the sale of the real estate sought to be sold under this bill, and in all the property which the deceased held at the time of his death. The same question is presented by some of the defendants by a petition or cross-bill, and whether these benefits to the sons are to be treated as advancements or as absolute gifts, is the only question which this appeal requires us to decide.

In this State as in England, a gift of money or property by a parent to a child, is presumptively an advancement, but this presumption may be repelled or rebutted by evidence proper for the purpose. In other words, whether such a gift takes the character and legal properties of an advancement or those of a full and absolute gift without a view to a portion or settlement, depends on the intention of the donor, and that intention may be ascertained by parol evidence of the donor's declarations at the time of executing the conveyance or making the gift, or of the donee's admissions afterwards, or by proof of facts and circumstances from which the intention may be inferred. These propositions have been so firmly established by a series of adjudications in this Court as to be no longer open to controversy. Stewart vs. Patterson, 8 Gill, 55; Parks vs. Parks, 19 Md., 323; Cecil vs. Cecil, 20 Md., 153; Clark vs. Wilson, 27 Md., 693. The law as thus settled, must be applied to the proof and the facts and circumstances of each case as it arises. In this sense it appears that the father, in consideration of natural love and affection, conveyed by deed, his home farm to his three sons, Robert, William and Charles, on condition that it should never be sold out of the Spedden family, and reserving to himself a life estate therein. The deed itself affords no solution of the difficulty. Neither the restriction upon alienation nor the reservation of a life estate indicates any intention of the donor to make it other than an advancement, which the law declares it to be where the conveyance is silent as to its design in this respect. Nor do we find in any of the facts or circumstances of the case, apart from the declarations of the donor proved by parol evidence, anything from which we can draw the inference of a contrary intention. But if the declarations of the donor, upon which the appellees rely, be admitted in evidence, and proved by a competent witness, they are conclusive of the question.

The testimony thus relied on is that of Robert Spedden, the complainant, who was called as...