Pilkington v. Wheat

• Citation: 51 S.W.2d 42,330 Mo. 767
• Decision Date: 10 June 1932
• Docket Number: 31072
• Parties: Ida E. Pilkington, Appellant, v. Martha J. Wheat and Claude R. Wheat
• Court: Missouri Supreme Court

51 S.W.2d 42

330 Mo. 767

Ida E. Pilkington, Appellant, v. Martha J. Wheat and Claude R. Wheat

No. 31072

Supreme Court of Missouri

June 10, 1932

Appeal from Webster Circuit Court; Hon. C. H. Skinker Judge.

Affirmed.

A H. Buchanan for appellant.

(1) Land deeded by a father to a child when no consideration passes is presumed to be an advancement and it devolves on the grantee to remove that presumption, by evidence. R. S 1919, Secs. 308, 309; Lynch v. Culver, 260 Mo. 495; McDonald v. McDonald, 86 Mo.App. 122; Byrne v. Byrne, 233 S.W. 461; Goble v. Kitchen, 266 S.W. 992. There was no evidence whatever to show that the 80 deeded to the son was an out and out gift to overcome the presumption of an advancement as pointed out in the cases of Lisles v. Huffman, 88 Mo.App. 143; Gun v. Thruston, 130 Mo. 339. And where devises under a will fail they are still treated as advancements where the devisee has had the advantage of the devise. Shepherd v. Fisher, 206 Mo. l. c. 250. The deed to son and mother did not create a joint tenancy: R. S. 1919, sec. 2273; King v. Theis, 272 Mo. 416; Cohen v. Herbert, 205 Mo. 537; Lemons v. Reynolds, 170 Mo. 227; Rodney v. Randau, 104 Mo. 51; Lounden v. Ballam, 258 S.W. 440. Words sufficient to constitute joint tenancy.

J. E. Haymes for respondent.

(1) Land deeded to a child by a parent is not subject to partition as a part of the deceased parent's estate, even though it was deed as an advancement to such child. Secs. 308-309, R. S. 1919. The deed from James J. Wheat and Martha J. Wheat, his wife (shown at page 14 of appellant's abstract of the record), to Claude R. Wheat and Martha J. Wheat, his mother, jointly, created a joint tenancy with right of survivorship. Case v. Owen, 139 Ind. 22, 38 N.E. 395, 47 Am. St. Rep. 253. To hold otherwise would render void and of no effect the word "jointly."

Fitzsimmons, C. Cooley and Westhues, CC., concur.

OPINION

FITZSIMMONS

This appeal presents for our decision the question whether certain land which a son owned at the time of his father's death should be treated as an advancement in a suit for partition. All the land involved is situated in Webster County.

Appellant, Ida E. Pilkington (plaintiff below) is the daughter of James J. Wheat who died intestate May 15, 1929. Respondents Martha J. Wheat and Claude R. Wheat respectively are the widow and son of James J. Wheat. The first count of the petition prayed for partition between the son and daughter subject to the widow's homestead and dower rights of one hundred and sixty acres (160) of farm land and two town lots in Seymour, which James J. Wheat owned at the time of his death. Respondents by their pleadings conceded the right of partition of this land. The controversy is over eighty (80) acres described in the second count. James J. Wheat, by a warranty deed (in which his wife joined) dated January 12, 1923, conveyed their eighty (80) acre tract to his wife, Martha J. Wheat and to their son Claude R. Wheat jointly. Mrs. Wheat, by warranty deed dated March 3, 1923, conveyed to the son, Claude R., all the interest in the eighty (80) acres which she had derived from the deed of her husband to herself and their son. The consideration named in both of these deeds was $ 1,000. Appellant, in the second count of her petition, alleged that no consideration was paid or passed for these deeds, and that their purpose was to convey the land to the son, Claude R. Wheat, as an advancement by his father and as part of his father's estate. Appellant prayed that these eighty acres be declared a part of the estate of James J. Wheat at the time of his death and that they be brought into hotchpot for partition with the other lands and property of the deceased. The trial court by its judgment ordered partition of the one hundred and sixty (160) acres in the first count between appellant and respondent Claude R. Wheat, after dower and homestead of respondent Martha J. Wheat had been set out. But the judgment expressly found that the eighty acres described in the second count were not an advancement to respondent Claude R. Wheat and partition was denied. From this judgment appellant took an appeal which was granted to the Springfield Court of Appeals. The latter court transferred the cause to this court for the reason that an action for partition in which the plaintiff's title is denied involves title to real estate.

Appellant, on her own behalf, testified that she did not know until after her father's death that her brother held title to the eighty (80) acre tract upon which he had been living for seven years. She conferred with her brother twice within a few weeks after the death of the father about the division of the land. Appellant wanted onehalf of all the land including both that which her father owned at the time of his death and that which her brother had acquired prior to the father's death. But respondent, Claude, was unwilling to divide on this basis. He wished to retain the eighty (80) acres which had been deeded to him and to give her her choice in the division of the land which the father owned at the time of his death. The only evidence offered by appellant tending to support her claim that their father gave the eighty (80) acres to her brother Claude as an advancement was her own testimony of what Claude said in one of their conversations. The testimony was as follows: "About a month after my father's death I had a conversation with my brother and mother at my place in regard to the eighty acres of land in suit in which he said my father had given him his part alright, but he didn't think it was fair, he was willing for it to go in as his part; and he also said he had a deed to that, but he didn't think it was fair, that he had given it to him but he wanted it to go in as his part." Claude denied these statements of his sister. He testified that, because he already had the eighty-acre tract, he expressed a willingness to divide the one hundred and sixty acres which his father had left by letting his sister have the home eighty acres worth about $ 1,500 and taking for himself the other eighty, a pasture tract worth about $ 1,000. To this his sister would not agree. Appellant also testified that "he (their father) always told us he wanted to treat his children alike, not to be partial with his children. He wanted them to both share alike in what he had." Appellant's daughter and husband gave testimony tending to support her version of her conversations with her brother Claude looking to a voluntary division of the land. Mrs. Martha Wheat, mother of appellant and of respondent Claude, confirmed Claude's testimony of the conversations. N. H. Pilkington, husband of appellant, testified that he asked Mrs. Wheat what she and her husband did with the thousand dollars which Claude paid for the eighty-acre tract and she answered that Claude did not pay anything for it, that his parents gave it to him. Whether this conversation was in the hearing of Claude does not appear. Pilkington and his wife, the appellant moved to Utah before the elder Wheat in 1923 deeded away the eighty-acre tract in controversy. So it was that Pilkington testified he did not know what arrangements Mr. Wheat had with Claude about giving him the eighty, and did not know why Wheat gave the land to Claude. Respondent, Claude Wheat, testified that when the land was first conveyed to him and his mother, there was no understanding that later his mother should transfer her share to him. That, he said, was arranged later between him and his mother. He was married about the time of the conveyance and he moved on to the land when the first deed was made in January, 1923. He lived on it ever after. He paid the taxes, built a house, barn, henhouse and smoke house, cleared about twenty-five acres and put out a peach orchard.

Appellant says the trial court erred in not holding that the eighty-acre tract described in the second count was an advancement, and in not requiring respondent, Claude Wheat to bring it into hotchpot. She argues that land, deeded by a father to a child, without a valuable consideration passing, is presumed to be an advancement, absent evidence that it was a gift. There is ample authority for this proposition. [Ray v. Loper, 65 Mo. 470, Lisles v. Huffman, 88 Mo.App. 143.] But the presumption that money or property received by a child from a parent is an advancement and not a gift may be overcome by extraneous evidence. [Gunn v. Thruston, 130 Mo. 339, 32 S.W. 654.] ...