Samson v. Samson

• Decision Date: 22 October 1885
• Citation: 25 N.W. 233,67 Iowa 253
• Parties: SAMSON, ADM'X, v. SAMSON ET AL
• Court: Iowa Supreme Court

25 N.W. 233

67 Iowa 253

SAMSON, ADM'X, v. SAMSON ET AL

Supreme Court of Iowa, Dubuque

October 22, 1885

Appeal from Washington Circuit Court.

PLAINTIFF is the widow of Francis Samson, deceased. She is also administratrix of the estate. The defendants H. F. Samson, L M. Samson, O. L. Samson and Martha A. Daugherty are the surviving children of Francis Samson. Defendant Wilson Daugherty is the husband of Martha A. Daugherty. Francis Samson died on the twenty-first of April, 1881. A short time before his death defendants received into their possession notes and mortgages of the aggregate value of about $ 10,000 which had formerly belonged to him, and about the same time he assigned to each of them (except Wilson Daugherty) bank stock of the value of $ 1,000. Plaintiff brought this action in equity to compel defendants to account for this property alleging, in one count of her petition, that they obtained possession of it in pursuance of a conspiracy which they had entered into to obtain possession of it during the life-time of their father, and cheat and defraud his estate out of it after his death; and in another count that the property is assets of the estate, and that defendants hold it in trust for the estate. Defendants deny these allegations, and allege that said Francis Samson, on the tenth of February, 1881 gave said property to them, intending the same as a gift to them; and they allege that at the same time, and as part of the same transaction, they each executed to him an agreement, by which they bound themselves each to pay him semi-annually during his life the sum of $ 93.50, and that these undertakings constituted a consideration for the transfer of the property to them. They each admit an indebtedness to the estate for a portion of the first semi-annual payments accruing under these contracts, and they brought the amounts into court and tendered them to plaintiff. The circuit court entered judgments against each of the defendants for the amount admitted to be due from him, and, in addition to this, it gave judgment against H. F. Samson for $ 594.58; that being the amount of a promissory note executed by one E. Q. Elsey to Francis Samson, which he had in his possession and surrendered to the maker, but which was not included in the alleged distribution. Plaintiff and H. F. Samson appeal.

On plaintiff's appeal the judgment affirmed. Reversed on defendant H. F. Samson's appeal.

J. F. Henderson and L. C. Blanchard, for plaintiff.

H. & W. Scofield, for defendants.

OPINION

REED, J.

I.

The allegation in the first count of the petition, that the defendants obtained possession of the property in pursuance of a conspiracy which they had entered into to get possession of it during the life-time of Francis Samson, and to cheat and defraud his estate out of it after his death, is not established by the proof. Without setting out the evidence relied upon by plaintiff to establish this allegation, we deem it sufficient to say that in our judgment it fails entirely to prove the charge. Plaintiff contends, however, that upon the admissions contained in the answers she is entitled to recover on the other claim alleged in her petition, viz., that defendants hold the property in trust for the estate, unless they have shown that it was transferred to them by gift. For the purposes of this case it will be conceded that the burden is on the party who claims title to property under a gift to establish the gift. But, before entering upon the consideration of the question whether the evidence establishes a valid gift of the property to defendants, it is necessary to consider the claim made by them that their undertaking to make certain semi-annual payments to Francis Samson during his life-time constitutes a consideration for the transfer of the property to them. Their claim is that they each entered into a written agreement to pay him $ 93.50 semi-annually during his life. It is not doubted that an undertaking of this character would constitute a consideration for the transfer of property. The burden of proof, however, is on defendants to establish the making and delivery of the undertakings. They have introduced in evidence what they claim are the undertakings entered into by them. But we think they have failed to show by any competent evidence that the undertakings were ever delivered to Francis Samson. It is shown that after his death each undertaking was in the hands of the party who executed it. Defendant's claim, however, that, when the instruments were executed, by agreement between them and Francis Samson they were deposited with L. M. Samson, one of the defendants, and that after the death of the father, as they were not deemed to be assets of the estate, they were surrendered to the obligors. But no evidence of this agreement to deposit the instruments with L. M. Samson, or of their delivery to Francis Samson, has been offered, except the testimony of the defendants themselves, and, under the provisions of Code, § 3639, they are not permitted to testify to the transaction. It was a personal transaction between them and him, and they are clearly not competent witnesses to it. And in this connection we deem it proper to say that in our opinion the testimony of each of the defendants with reference to the transaction in which it is claimed the property was delivered to them should be excluded. It is not claimed by counsel that any of the defendants, except Wilson Daugherty, is competent to testify to the transaction. It is insisted, however, that, as the alleged gift was to his wife, and not to him, he is a competent witness to it. It is shown by his testimony that he was present during the greater part of the transaction, and that, at his wife's request, he joined with her in the undertaking to make the semi-annual payments to her father. By that act, we think, he became a party to the transaction in such sense as that the statute precludes him from testifying with reference to it. If the transfer of the property is to be upheld, then, it must be sustained on the theory that it was made as a gift to the defendants, for the evidence fails to show that it was supported by any substantial consideration.

II. We will inquire, then, whether the allegation that it was intended as a gift to the defendants is established. As stated above, in determining this question, the...