Pruner v. Lovejoy, 3570

• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas
• Writing for the Court: McDONALD; HALE; McDONALD; HALE
• Citation: 314 S.W.2d 651
• Parties: J. E. PRUNER et al., Appellants, v. Eiland LOVEJOY, Administrator, et al., Appellees.
• Docket Number: No. 3570,3570
• Decision Date: 28 May 1958

Page 651

314 S.W.2d 651 J. E. PRUNER et al., Appellants,
v.
Eiland LOVEJOY, Administrator, et al., Appellees. No. 3570. Court of Civil Appeals of Texas, Waco. May 28, 1958.
Rehearing Denied July 1, 1958.

Ernest May, Fort Worth, Walter M. Hilliard, Caldwell, for appellants.

T. R. Mears, Byron L. McClellan, Gatesville, for appellees.

Page 652

McDONALD, Chief Justice.

This case is an appeal of a partition in probate. Parties will be referred to as in the Trial Court. Petitioners are Eiland Lovejoy, Administrator of the Estate of Mrs. L. B. Brown, deceased, Mrs. Edna Ruth Lovejoy (who is the wife of Eiland Lovejoy), Mrs. Countice Honeycutt and husband, and Mrs. Louise Schwalbe and husband. Respondents are Jim Ed Pruner and Mrs. Lucile Denman. Mrs. Lovejoy, Mrs. Honeycutt, Jim Ed Pruner and Mrs. Denman are children of Mrs. L. B. Brown, deceased, and Mrs. Schwalbe is the only heir of a deceased danghter of Mrs. Brown. They constitute all of the heirs at law of the deceased. Petitioner Lovejoy became administrator of the estate of Mrs. L. B. Brown, deceased, who died intestate, as the result of an agreement of all of the deceased's heirs at law. He filed application for partition of the estate on 6 February 1957, alleged that all debts had been paid, and prayed that certain sums of money received by Jim Ed Pruner and Mrs. Denman be charged against them as advancements and that they be required to account for same in the partition.

Respondents Pruner and Mrs. Denman answered, denying that the amounts received by them during their mother's lifetime were advancements, and alleged that same were absolute gifts and should not be charged against their distributive share in their mother's estate.

Trial was to the court without a jury, which found that the estate was fully administered; that Pruner had received $4,616 from his mother during her lifetime; that Mrs. Denman had received $3,500 from her mother during her lifetime; that such amounts were advancements and that respondents must account for same in the partition.

Respondents appeal contending:

1) The testimony of administrator Lovejoy was violative of Article 3716, Vernon's Ann.Civ.St. (the Dead Man's Statute).

2) That the testimony of administrator Lovejoy was hearsay of his intestate, and as such inadmissible.

3) That the advancements to Pruner and Mrs. Denman were not proved.

The only issue to be determined in this case is whether the moneys received by Mr. Pruner and Mrs. Denman from their mother during her lifetime were advancements or whether same were outright gifts. It is undisputed in the evidence that respondents received the alleged amounts by checks, from their mother during her lifetime.

Section 44 of the Texas Probate Code, Vol. 17A, V.A.T.S., which went into effect on January 1, 1956, provides:

'* * * Every gratuitous inter vivos transfer is deemed to be an absolute gift and not an advancement unless proved to be an advancement. * * *'

Prior to the effective date of the Probate Code the rule was substantially the same; i. e., that a party asserting that transfers made prior to the death of a party were an advancement has the burden of proving such fact. Rutherford v. Deaver, Tex.Com.App., 235 S.W. 853, opinion adopted Sup.Ct.; Bailey v. Bailey, Tex.Civ.App., 212 S.W.2d 189, W/E Refused.

Petitioners have duly plead that the amounts received by respondents were advancements. Their proof consisted of the testimony of Eiland Lovejoy, the administrator of the estate, and husband of one of the petitioners. He testified:

'After Mr. Brown died, Mrs. Brown consulted with me frequently about her business affairs. She consulted and talked with me at the time these checks were being given and paid. At the time some of the checks would come in, she would talk to me or tell me that a check came in, one that had been given and that had arrived at the bank. She said to me a number of times that

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they had gotten their part of the estate. One particular time, she had some checks and was listing them at her desk--and I came in, and she had those checks out in front of her there, and she says, 'They have got their part of the estate.'...