Thistlewaite v. Thistlewaite

• Decision Date: 07 October 1892
• Docket Number: 15,075
• Citation: 31 N.E. 946,132 Ind. 355
• Parties: Thistlewaite et al. v. Thistlewaite et al
• Court: Indiana Supreme Court

31 N.E. 946

132 Ind. 355

Thistlewaite et al. v. Thistlewaite et al

No. 15,075

Supreme Court of Indiana

October 7, 1892

From the Hamilton Circuit Court.

Judgment affirmed.

T. J Kane and T. P. Davis, for appellants.

M Bristow, A. Boulder, R. R. Stephenson, and W. R. Fertig, for appellees.

OPINION

Elliott, J.

The complaint in this case seeks the partition of lands of which John Thistlewaite died the owner. Such pleadings were filed as presented for decision the question whether some of the heirs of the deceased had not respectively received property as an advancement, and it was decided that they had so received property. The questions argued by counsel are presented by a motion for a new trial, and these questions we shall consider and decide in the order in which they logically arise.

The appellants made various offers to prove the declarations of John Thistlewaite as to the terms upon which the money and property was turned over to his children, but the court excluded the offered evidence. The evidence offered is of the same general character, and was, in substance, that John Thistlewaite declared that the property was made over to the respective recipients as an absolute gift, and not as an advancement. The offered declarations were made several years after the transactions, and were not, in any sense, part of the acts. They were too remote in point of time to be considered as of the res gestoe, and they were therefore, not competent upon that ground. Nor do we think they are competent upon the ground that they were declarations against the interest of the party by whom they were made, inasmuch as so far as his interest was concerned it was immaterial whether the transfer of the money and property was by way of a gift or advancement. We think the question under consideration must be regarded as settled by the decision in the case of Harness v. Harness, 49 Ind. 384.

In the case referred to the earlier cases of Woolery v. Woolery, 29 Ind. 249, and Hamlyn v. Nesbit, 37 Ind. 284, were expressly overruled in so far as they were opposed to the doctrine declared by the court. The case of Harness v. Harness, supra, was approved in Joyce v. Hamilton, 111 Ind. 163, 12 N.E. 294 (167), and a distinction adjudged to exist between declarations of the ancestor made before the transaction and declarations subsequently made. We feel bound to yield to these decisions.

The trial court did not commit any material error in refusing to permit the appellants to prove that John Thistlewaite purchased the land which was the basis of the accumulations that enabled him to make the advancements to...