Lowe v. Wiseman , 46 Ind. App. 405 ( 1910 )

Watson, J.

This action was brought by appellee against appellants for the partition of real estate. The complaint, which is.in one paragraph, alleges that plaintiff’s wards and the defendants are the owners as tenants in common of the undivided one-third of the real estate described therein; that Rachel Lowe died intestate about the year 1901, the owner of the whole of said real estate, leaving as her only heirs at law George Lowe, her husband, and six children, to wit, William P. Lowe, Martha C. Wiseman, Laura Lowe, Grace Lowe, Florence Lowe and Pay Lowe; that said Martha C. Wiseman, together with her husband, executed to William P. Lowe her deed conveying to him all her interest in said real estate; that both Martha C. Wiseman and her husband died intestate, leaving as their heirs at law their minor children, Raymond Wiseman, Mabel Wiseman and Ralph. Wiseman, who are wards of plaintiff; that said George Lowe, who was the 'owner in fee of certain land of the value of $3,500, conveyed it by deed, without consideration except love and affection, .to his five children other than Martha C. Wiseman; that in April, 1904, said George Lowe died intestate, the owner of said undivided one-third of the real estate first described in said complaint, being the real estate inherited by him from Rachel Lowe, deceased. The prayer is that the lands be partitioned among the parties to said action, and that the conveyance by George Lowe to his five children be treated and considered as an advancement to them.

A demurrer was filed to the complaint, but was overruled and exceptions taken. Thereupon an answer was filed in general denial. Motion for a new trial was made and overruled. The finding, as well as the judgment, was that-George Lowe died intestate, the owner in fee of the undivided one-third of twenty acres off the south end of the southwest quarter of the northeast quarter in section thirty-four, township eighteen north, range five east, also the undivided one-third of nineteen and one-half acres off the west side of the northwest quarter of the northeast quarter of section thirty-five, township eighteen north, range five east, in Hamilton county, Indiana; that said George Lowe left as his heirs the defendants herein and the plaintiff’s wards; that during his lifetime said George Lowe made advancements to each of defendants in the sum of $640; and that plaintiff is entitled to partition of said real estate, taking into consideration said advancements. The court appointed commissioners to make partition of said real estate accordingly.

The errors relied upon for reversal are: (1) The court erred in overruling appellants’ demurrer to appellee’s com-plaint; (2) the court erred in overruling appellants’ motion for a new trial.

1. The appellants insist that the complaint in this cause does not state facts sufficient to withstand a demurrer. It alleges that plaintiff’s wards and the defendants are owners as tenants in common of an undivided one-third of the real estate described. It further sets out the source from which plaintiff’s wards derive title. This, however, was unnecessary, but we do not see how it could in any way affect the averments in the complaint.

2. 3. It is also urged that the complaint was insufficient, for the reason that it avers that Martha C. Wiseman and her husband, parents of appellee’s wards, conveyed all their right, title and interest to William F. Lowe, brother of Martha C. Wiseman. It is averred that said Martha C. Wiseman died intestate, and that afterward her father, George Lowe, died intestate. The conveyance by Martha C. Wiseman and her husband to William F. Lowe could not have passed the title to any real estate that she did not at that time own, or real estate that subsequently she or her heirs acquired by descent. Layton v. Herr (1910), 45 Ind. App. 203; Holbrook v. Debo (1881), 99 Ill. 372; Blanchard v. Brooks (1831), 12 Pick. 47; Coe v. Persons Unknown (1857), 43 Me. 432; Wight v. Shaw (1849), 59 Mass. 56; Clover v. Condell (1896), 163 Ill. 566, 45 N. E. 173, 35 L. R. A. 360; Headrick v. McDowell (1903), 102 Va. 124, 45 S. E. 804, 102 Am. St. 843, 65 L. R. A. 578.

In the case of Blanchard v. Brooks, supra, the court said: “A conveyance of all the right, title and interest in lands, is certainly sufficient to pass the land itself, if the party conveying has an estate therein, at the time of the conveyance ; but it passes no estate which is not then possessed by the party.”

The complaint states facts sufficient to withstand a demurrer.

4. The next error assigned is the overruling of the motion for a new trial. The deed executed on April 10, 1903, by George Lowe to his children, other than Martha C. 'Wiseman, the consideration being $1, love and affection, is presumed to be an advancement to the grantees, and the court upon the evidence finds it to be such, and fixes the value of said real estate at $80 per acre, or $640 advanced to each of the grantees named. Scott v. Harris (1891), 127 Ind. 520; Culp v. Wilson (1892), 133 Ind. 294.’

•5. It is contended, however, that because the deed says that the grantees shall not have possession until the death of the grantor, the court erred in fixing the value of the land at $80 an acre, that being the value thereof at the time of the death o'f the grantor. Section 3011 Bums 1908, §2480 R. S. 1881, provides: “In the division or distribution of an estate, the amount or value of an advancement shall be estimated according to the amount or value when given.”

The value of the advancement is to be ascertained at the date when it comes into the possession and enjoyment of the parties to be charged. 1 Am. and Ep.g. Ency. Law (2d ed.) 783; Pigg v. Carroll (1878), 89 Ill. 205; Jackson v. Jackson (1885), 28 Miss. 674, 64 Am. Dec. 114; Puryear v. Cabell (1874), 24 Gratt. (Va.) 260.

6. It is next urged that the court erred in not permitting the witness William A. Morgan to testify as follows: ‘ ‘ That George Lowe told in the' winter or early spring of 1904 that he had made a deed of his property and real estate to his five living children, and that he intended them to have all of his property at his'’death, that he did not intend to leave any of his property to his grandchildren Mabel Wiseman, Ealph Wiseman and Raymond Wiseman, for the reason that they would inherit from their father more than he had to leave to his own children.” This was long after the deed in question had been executed by decedent, and was therefore too remote. Harness v. Harness (1875), 49 Ind. 384; Thistlewaite v. Thistlewaite (1892), 132 Ind. 355; Swygart v. Willard (1906), 166 Ind. 25.

7. It is also urged that the court erred in not permitting John Wiseman to testify as to how much land Lewis C. Wiseman, father of said wards, owned at the time of his death. How this could have any bearing upon the partition of the real estate owned by the grandfather of appellee’s wards, we are unable to see.

We find no error in the record warranting the reversal of this cause.

Judgment affirmed.