Opinion
05-10-1888
JAKOLETE v. DANIELSON et al.
Abel I. Smith and Mr. Mahon, for complainants. Warren Smythe, for defendants.
Bill for partition by Penelope Jakolete against William J. Danielson and others.
Abel I. Smith and Mr. Mahon, for complainants. Warren Smythe, for defendants.
BIRD, V. C. The questions in this case arise upon a bill filed for the partition of the lands of which James Danielson died seized. The deceased left eight children. In 1863, he conveyed to his son William J. about one acre of land, and in 1877 he conveyed to his son Winfield S. one acre of land. The land conveyed to Winfield had a house and other valuable improvements thereon. The former was worth $400, and the latter $1,500, at the time of the conveyances. It is insisted, upon the part of the complainant, that these conveyances were advancements by the father to his sons of so much of his estate. This is resisted on the part of the sons. William J. insists that the conveyance to him was for a valuable consideration. He offers, in support of this, his own statements under oath. He says that he had lived with hisfather from the year 1849 to 1851, and that in the latter year his brother determined to go to California, and went, and that he was anxious to go with him, but that his father tried to dissuade him from going, and, as an inducement, told him that if he would remain home and live with him he would give him an acre of land. He says that, in consideration of this promise of his father, he remained at home. The promise of the father was not then carried out. In 1857 or 1858 (six or seven years after the promise) William erected upon this acre of land a dwelling-house, and in 1863 the father made and executed to him a deed of conveyance, which was not recorded until the 14th of June, 1867. This deed is partly printed and partly written. The blank usually left in printed forms for inserting the consideration appears in this deed without anything whatever written therein. In such case the burden of showing that the conveyance was a gift or a sale for value, and not an advancement, would seem to be upon William, the defendant. Although the case of Speer v. Speer, 14 N. J. Eq. 240, is not in all particulars similar to this branch of the case before me, yet I think the inference to be drawn from the argument of the learned and experienced chancellor plainly is that it devolves upon the person claiming that such conveyance is not an advancement to establish that fact. In such case the presumption seems to be that the transaction represents an advancement rather than a gift. And I think the notes to the case of Miller's Appeal, 80 Amer. Dec. 555, 560, are to the same effect. To ascertain whether such a transaction is a gift or an advancement, all the circumstances which transpired between the parties should be taken into consideration. It will be observed that this deed was not executed until at least 12 years elapsed after William says the promise was made. Now, we cannot but inquire what took place between the parties in the mean time. William said he was about going to California. He says that his father promised him that, if he would remain at home, he would give him an acre of land. He did remain at home, it is true; but it appears from his own statements that he immediately entered into a contract with his father to farm his father's land, for which he was to receive one-third of the profits, while two-thirds were to be retained by the father. Afterwards, but just when does not appear definitely, William himself became the owner of 77 acres of land, and this he farmed with his father's land, his younger brother, at this time, participating in the contract of farming; William receiving one-third, Winfield one-third, and the father one-third, of the entire tract. Thus, during this entire period, from the making of the original promise by the father up to the period of the execution of the deed, William was under a contract with his father to farm his father's farm for a given consideration. So that it cannot be said that his remaining at home was a loss to him, in that he remained depending entirely for his support upon the promise made by his father; for from time to time he made these new contracts with his father respecting the management of the farm. Nor does it appear from his statements that, at any time when these new arrangements were made and entered into, the original promise to give him this tract of land was renewed or insisted upon by him, or ever taken into the account. These facts, together with the fact that nothing appears in the deed showing what the true consideration was, do not seem to remove the presumption, which arises in every such case, that such conveyance was intended as an advancement rather than as a gift. Then it is to be noted that of this family of eight children William is the only one produced as a witness on this subject. It seems to me that in such case, unless the facts as sworn to are convincing, the circumstances ought to be strongly corroborating to dispel the fair presumption.
The deed conveying the tract to Winfield is also partly printed and partly written; and the blank space in the printed part where the consideration is usually inserted has written therein "one dollar." Winfield does not offerhimself to state how his father came to deliver to him this deed, or what the consideration was; but William swears that, about six months before the deed was executed, his father said to him that he intended to give the homestead to Winfield; because he had stayed at home, he (the father) thought he ought to give it to him. At the time of the execution of the deed, the father was about 80 years of age. The presumption above stated seems to be more feebly assailed in this than in the former instance. There must be a sale. Whether William and Winfield, or either of them, has any interest in the land still remaining in the heirs or not, cannot be determined until the full value of such land is ascertained by a sale. In the decree of distribution their rights can be adjusted.