(146 N.E.)

with gifts, or subsequent verbal declarations | 18. Witnesses 139(9) —Parties in partition, by him to child and not controverted by latter, are admissible in subsequent suit for partition among devisees.

12. Wills 760-Value of land advanced determined as of date of possession by child

Where will provides for deductions for advancements, but does not fix value of land advanced, such value is to be determined as of date of possession by child as owner, although advancement was made in parol and deed was not delivered until after possession acquired.

13. Wills 761-Agreement at time of advancement provable, where later will provided for deductions for advancements.

Where father had conveyed land to son which was agreed to be an advancement in lieu of son's share in estate, and in subsequent will made all his children residuary devisees with provision for deductions for advancements, in suit for partition, actual agreement or understanding at time of advancement, was provable.

14. Wills 761-Will providing for deductions for advancements admissible to prove testator's final intention.

not suing as heirs, not incompetent as parties in interest.

In suit for partition of land, involving question of advancements by common ancestor, parties are not suing as heirs of an intestate, and statutory rule as to incompetency of parties in interest has no application.

19. Witnesses 149(2)-Devisees suing in partition incompetent as to conservator for one of defendants.

In suit by one child against others for partition of land, involving question of advancements by father, complainant is an incompetent witness as to conservator defending for one of insane defendants, unless within one of dence and depositions. exceptions to section 2 of the act on evi

20. Wills 758-Statute as to advancements inapplicable in suit for partition by devisees.

Statute of Descent, §§ 4-8 relating to advancements, applies only to intestate estates, and is inapplicable to suit for partition between devisees under will, involving question of advancements by common ancestor.

21. Pleading 80-Defenses in answer not unavailable because set up as complete bar instead of partial defense.

Where father conveyed land to son which was agreed to be an advancement in lieu of Defenses in an answer cannot be considered son's share in estate, and in subsequent will as unavailable because defendants erroneousmade all his children residuary devisees with ly set them up as a complete bar instead of provision for deductions for advancements, in suit for partition, such will is admissible to prove that final intention of testator was that advancement should be deducted from child's

share.

15. Wills 759(1)-Testator may make more favorable provision in will than provided for by prior advancement.

A testator may make provisions in his will more favorable to child than provided for by agreement in making prior advancement.

16. Evidence

213(3)—Evidence of offer by way of compromise not admissible.

Offer, by way of compromise by several heirs to coheir, is not admissible against them, in suit for partition to have advancement to coheir deducted from his share, to contradict their testimony concerning agreement between testator and coheir at time of making ad

vancement.

17. Evidence 269 (2)-Witnesses 150 (3) -Devisees competent to testify as to agree ment and declarations of father when making advancement to son, but declarations in absence of son not provable.

Where father conveyed land to son as advancement in lieu of son's share in estate, and in subsequent will made son residuary devisee with provision for deductions for advancements, in suit for partition between devisees, devisees are competent to testify as to agreement and declarations of father when making advancements, but mere declarations, made in absence of son were not provable.

a partial defense.

Appeal from Circuit Court, Fulton County; W. F. Graham, Judge.

Bill for partition by Charles W. Alward against Harriet J. Woodard and others. From decree for complainant, defendants appeal. Reversed and remanded.

Harvey H. Atherton and Glenn Ratcliff, both of Lewiston, for appellants. Burnett M. Chiperfield and Claude E. Chiperfield, both of Canton, for appellee.

DUNCAN, C. J. Benjamin Alward died testate in Fulton county on October 20, 1896, leaving him surviving Eliza Alward, his widow, to whom by the third clause of his will he gave for her natural life all of his property, except certain specific devises to his children, with full power to sell and dispose of and convey such parts of his real estate as she might deem necessary to carry out the provisions of his will, and she was named executrix without bond. He also left surviving him ten children: Harriet J. Alward (now Harriet J. Woodard), Eliza A. Alward, adjudged insane, for whom Carrie Alward was appointed conservator, Elizabeth S. Alward, Grace Alward (now Grace Gulick), Carrie Alward, Mabel Alward, Benjamin F. Alward, George E. Alward, Charles W. Alward, and Guy H. Alward. To the 6 daughters, by the second clause of his will, he bequeathed a legacy of $250 each, and by the

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

same clause to each of his four sons be bequeathed a team of horses and harness therefor. The clause concluded with this provision:

"In case either of my said children above named shall have received any advances of money or property before my decease, then in such case the amount so advanced to either shall be deducted from the respective share of such child receiving said advance."

or interest in the land. It is averred in the answer that on January 23, 1895, Benjamin Alward and his wife, Eliza, by their warranty deed conveyed to Charles W. Alward, their son, 1172 acres of land in Fulton county for a consideration named in the deed of $7,000, but that no part of the consideration was ever paid by the grantee therefor, and that said conveyance was made to Charles under an agreement between Benjamin and him that the land was to be accepted by the latter as his full distributive share and interest in the estate of his father, and that the deed was so accepted by him. It is also averred that the land was worth at that time $8,000, and that Benjamin received no other consideration for the land than the agreement aforesaid, and that Charles accepted the deed under the agreement, subject to an unreleased mortgage upon the land for $1,000; that the deed was recorded January 30, 1895, and that on the same day Charles gave a mortgage on the land for $4,000 to Emmerson Clark, and on July 17, 1901, sold and conveyed the land for a consideration of $7,200; that he had possession and control of the land from the date of the deed to him, and received all income thereon during the time he owned it. It is further averred in the answer that Charles received the tract of land from his father as an advancement and in full of his distributive share of the

The will also provided for the payment of all the testator's debts and funeral expenses, and contained a residuary clause dividing the remainder of his property equally among his children or their legal heirs. The testator executed his will June 2, 1885, and it was admitted to probate in Fulton county on November 27, 1896. He died seized in fee of 425 acres of land in Fulton county, and 160 acres in Mason county. Stephen Alward, who has been adjudged insane and for whom Benjamin Richmond was conservator, had a life lease on 160 acres of the land, and his interest was canceled by his death January 3, 1922, pending this suit. Henry Bartles is in possession of the Mason county land as tenant, and Wiley and Alonzo Ray are in possession of 193 acres of the Fulton county land as tenants. · Elizabeth S., Carrie, Mabel, and Guy H. Alward are in possession of 100 acres of said land. Other named tenants are in possession of certain parts of the land leased to Stephen Al-estate of his father, and that under the terms ward. Eliza Alward, the widow, died July 4, 1918, after having executed a mortgage on the Mason county land to R. M. Kingsland, as trustee, to secure the payment of $2,500, which mortgage is a lien on the land. Benjamin F. Alward died intestate March 29, 1918, leaving him surviving Carrie Alward, his widow, and Pauline M., Benjamin M., and Mildred Alward as his children and heirs at law.

Charles W. Alward, a son of the testator, filed a bill in the circuit court of Fulton county on July 30, 1919, for partition and for an accounting for rents, and as finally amended it alleges, in substance, the foregoing facts, and states that he and the other 8 children of the testator surviving are each entitled to an undivided one-tenth of the lands under the residuary clause of the will, and that Pauline M., Benjamin M. and Mildred Alward, granchildren of the testator, are each entitled to an undivided one-thirtieth, subject to the lawful rights of Carrie Alward, widow of Benjamin F. Alward. The other heirs, the tenants, the conservator of Eliza A. Alward, and R. M. Kingsland, trustee, were made defendants to the bill. The conservator and the other children of the testator filed a joint and several answer to the bill, admitting, in substance, the facts aforesaid, but denying that Carrie Alward, widow of Benjamin F. Al

of the will he has no further right, title or claim in any of the property of the said estate and is estopped from asserting any right thereto. The answer further avers that the conveyance to Charles by his father was by virtue of an agreement between them that in consideration of the making of the conveyance he would release bis father from any and all claim or share in his estate. The court appointed a guardian ad litem for Benjamin M. and Mildred Alward, infant defendants, and H. H. Atherton, guardian ad litem for the insane defendant, Eliza A. Alward, and they filed formal answers to the bill. Replications were filed to all the answers. The other defendants made default. The cause was referred to the master in chancery to take the evidence and report the same with his conclusions. He took and reported the evidence, and found that the deed to Charles W. Alward from his father of the 1171⁄2 acres of land was not made in consideration of "the release of his expectancy" in his father's estate. which was the only finding he made concerning the deed. He further found the other facts substantially as alleged in the bill and recommended partition as prayed. Objections were filed to the master's report by appellants, the 8 brothers and sisters of appellee, and the conservator of Eliza A. Alward, insane, and were overruled.. Ex

(146 N.E.)

ruled by the court and decree for partition | death of their father, to the effect that he as prayed was entered.

The principal contention of appellants in this appeal is that the court erred in its findings and in its decree that the deed of January 23, 1895, to appellee by his father and mother was not executed by them and received by him as an advancement and in full of all of his interest in his father's estate under the agreement set forth in the answers of appellants, or as an advancement under the will and its value to be deducted from his share in the estate. Appellants preface their argument by the statement that the question to be determined by this appeal is: What interest, if any, does appellee have in the real estate described in the bill under the will of the testator? Their further claim is, that the overwhelming weight of the evidence shows that appellee did accept the conveyance under the agreement; that the court erred in holding the evidence of the 7 witnesses for appellants incompetent as against appellee, to wit, Guy H., George, Elizabeth, Carrie, and Mabel Alward, Harriet J. Woodard and Grace A. Gulick, devisees under the will; and also in holding that appellee was competent to testify to facts concerning the deed in question, and particularly as against Eliza A. Alward, the insane defendant.

The undisputed evidence concerning the deed is that it was executed on January 23, 1895, as alleged in the answers of appellants, subject to an unreleased mortgage for $1,000.

The consideration named in the deed was $7,000. On the same day appellee gave a mortgage on the land therein described to Emmerson Clark for $4,000, and on July 17, 1901, sold and conveyed the land for a consideration of $7,200. It appears also that he had been in possession and control of the land some time before the deed was executed. The testimony of the 7 appellants, which was excluded by the court on the ground of their incompetency to testify, is to the effect that for some time prior to the making of the deed appellee had repeatedly and insistently importuned his father to deed him the land or to give him his share of his father's estate so that he might purchase a furniture and undertaking business in the city of Canton; that his father at first refused to do this, but finally consented to the making of the deed, provided appellee would accept it as his full share in his father's estate, which appellee agreed to do. There were no papers signed at the time evidencing the agreement, but appellee repeatedly promised his father he would do So. In the spring of 1895, after the making of the deed, Benjamin Alward suffered a paralytic stroke, from which he never recovered, and was never thereafter able to go about alone or transact business. The appellants also testified to admissions on the part of appellee, both before and after the

received the deed from his father under the agreement aforesaid. Grace Gulick, one of appellants, testified specifically that she was at home when the deed was made by her father to appellee and saw the deed, and that it was in the handwriting of appellee; that it was signed in one of the bedrooms at her father's house, and that she heard a great deal of conversation about it; that the land was valued at $7,000, and appellee was to pay $1,000 cash to her father, and the $1,000 mortgage that was then on the land, and it was stated at that time that the remaining $5,000 was to be considered as appellee's share in her father's estate.

Two other witnesses, Thomas A. Higgs and Alice Davis, cousins of appellee, testified to admissions of appellee to their father at their home in Trivoli, a few days after the making of the deed, to the effect that he received the deed from his father for the land in question, and that it was to be considered as his share in his father's estate. They also stated that he requested their | father the next day to go with him to Farmington to identify him so he could borrow money on the land; that he was going to start up in business and needed the money for that purpose. It is the claim of appellants that the testimony in the record shows that appellee mortgaged the land for $4,000, and used the money in paying for a furniture business which he bought from one Gearhart, in Canton, for $7,000.

Appellee, over the objection of appellants, in substance testified that the full amount that he was to pay his father for the land was $5,000, and that it was deeded to him

subject to a $1,000 mortgage, which he paid off; that he paid his father $4,000 with the dition to that he paid $500 to his father on money he borrowed on the farm, and in adNovember 23, 1894, and a further sum of $500 on March 21, 1895. The sum and substance of his evidence is that he bought the land outright from his father and paid for it, and also that he bought the furniture business of Gearhart for $7,000, and that he used no part of the money that he borrowed on the farm to pay for that business. He denied in toto the evidence of Thomas A. Higgs and Alice Davis, and denied being at their father's house at the time they mentioned in their testimony. He exhibited a receipt signed by his father and a check to his father for $500 each, the receipt reciting that the money was to apply as payment on the farm, and was dated November 23, 1894. The check was dated March 21, 1895, and he testified that it was given for money paid to his father on the farm. He also made proof of paying the $1,000 encumbrance on the farm. His testimony is the only testimony in the record to the effect that he bought the farm out and out from his father and paid the full purchase price, except as to the two $500 payments corroborated by the check

(146 N.E.)

dence where the testator in the will directs | pellee concerning the question of advanceadvancements to be accounted for, to show ment under the rules above laid down. But what advancements are within the terms of mere declarations of the testator on that the will. 1 Underhill on Wills, § 447. Decla- question, made in the absence of appellee, rations of the parent contemporaneous with are not provable. making the gift, or subsequent verbal declarations by him to the child and not at the time controverted by the latter, may be offered in evidence. 2 Alexander on Wills, 8 742. The value of land advanced, when not fixed by the will, is to be determined as of the date of taking possession as owner, although the advancement was made in parol, and the deed to the land was not delivered until after possession was acquired. 1 R. C. L. 678.

[13-15] It is clear that under the authorities the actual agreement or understanding, if any was made or had, is provable in this case. The will is also admissible in connection with this proof-that is, the above quoted part thereof-as proof that the final intention of the testator was that the advancement should be deducted from appellee's share under the will and not be considered as his full share under it, according to the agreement the testator and appellee made, if it should finally be found from the evidence that such was the agreement. The court will thus be advised of all the proper evidence in the case, and can construe the will, under the evidence, in view of the rule that none of the oral evidence can be accepted for the purpose of varying the terms of the will. The testator had the right to make provisions in his will more favorable to appellee than the terms of the contract.

[16, 17] The evidence of appellants excluded by the court tends to show that the testator valued his estate at $50,000 at the time he entered into the alleged contract with appellee, and that he valued the tract of land claimed to be advanced at $7,000; that he required appellee to pay him $1,000 in money, and to discharge the lien of $1,000, thereby making an advancement to him of $5,000 worth of land as his share in the estate, onetenth of his estate at that time. The evidence in the record also tends to show that appellants after the death of the testator valued the estate at much more than $50,000, and that they offered appellee in compromise $10,000 for his interest therein, which evidence, we may further say, was not admissible against appellants as tending to contradict them in their testimony concerning the agreement of the testator with appellee on the question of advancement, if it shall appear, as claimed by them, that such offer was made by way of compromise. On the theory of the decision that the advancement to appellee, if any, is to be deducted from his share in the estate, appellants were competent witnesses to testify as to all relevant facts on the question whether or not the land was deeded as an advancement to appellee-that is, to prove the contract, or any proper declarations of the testator or of ap

The

[18] In a suit for the partition of land, involving the question of advancements by the common ancestor, the parties cannot be said to sue and be sued as heirs of an intestate, any more than if the property had been acquired otherwise than by inheritance, and that clause of the statute which inhibits parties in interest or of record in such cases from becoming witnesses on their own motion has no application. In such a case the property belongs to the litigants, and it makes no difference how they acquire the title, whether by purchase or descent. exception to this rule is where they sue or defend in certain representative capacities. The statutory rule that such parties as heirs are incompetent as witnesses is intended to protect the estate from the assaults of strangers, and relates to proceedings wherein the testimony of such parties would tend to impair the estate. The testimony in this case, under the interpretation of the will that we have given, has no tendency to impair the estate, as all of the parties are admitted to be devisees. The same rule, of course, applies to devisees in a partition suit under a will where the testimony of the devisee does not tend to impair the estate as it would do if any one of the devisees could be challenged as being a devisee. Laurence v. Laurence, supra; Kershaw v. Kershaw, supra; Pigg v. Carroll, 89 Ill. 205.

[19, 20] Appellee would be a competent witness, to the same extent as appellants, to testify in his own behalf except for the fact that a conservator defends for one of the insane devisees. As to such conservator he is an incompetent witness, unless his testimony may come within some one of the exceptions to section 2 of our act on evidence and depositions. Smith-Hurd Rev. St. 1923, c. 51, § 2. Sections 4 to 8, inclusive, of our statute on descent (Smith-Hurd Rev. St. 1923, c. 39, §§ 48) concerning advancements, are not applicable to this case, as all of them pertain to intestate estates only. Some of the decisions above cited hold to the same effect.

We have not intended to indicate what the decision in this case should be on the merits, as the decree of the circuit court must be reversed for errors in its rulings on the admissibility of evidence and as to the competency of witnesses, as already indicated.

[21] The answers of appellants set up two defenses, in each of which they insist that appellee has received his full share in the estate. However, they set up in their answers all the facts under which they make such claim, and their defenses cannot be considered as unavailable because they erroneously claim that such facts are a complete bar and not simply a partial defense.