Gobel v. Kitchen

*358 BRADLEY, J. Lee and Plelen Gobel, minors, by tbeir guardian brought suit against E. O. Kitchen and his mother, Sarah Kitchen, to determine the character of a conveyance to certain lands in Dent county to defendant E. O. Kitchen. The court found the conveyance to be an advancement, and defendants appealed. Prior to February 6, 1923, G. C. Kitchen owned five-sevenths of the land conveyed, and defendant E. C. Kitchen owned the remaining two-sevenths. On February 6,1923, G. C. Kitchen and his wife Sarah conveyed by warranty deed the five-sevenths interest to E. C.Kitchen, their son. The deed recited a consideration of $5000, but there was in fact nothing paid. Plaintiffs are the grandchildren of G. C. Kitchen. Their mother, now deceased, was the daughter of G. C. Kitchen by a former marriage. On April 7th after the conveyance in February G. O. Kitchen died, and E. C. Kitchen asserted his claim of entire ownership of the land and this suit followed. The petition counted upon undue influence, unsound mind and an allegation of advancement. The answer put in issue the allegations of the petition. The only question presented for our determination is whether the evidence is sufficient to support the finding that the conveyance to defendant E. C. Kitchen was intended as an advancement. Substantial gifts of money or other property by a parent to a child are presumed to be advancements, and the burden of showing the contrary rests on the party denying the advancement. [Lynch v. Culver, 260 Mo. 489, 168 S. W. 1138, and authorities there cited.] The greater portion of the record here is made up of evidence directed to questions other than the question of advancement. W. H. Haven, the notary who prepared the deed and took the acknowledgment, testified that G. C. Kitchen, the grantor, directed him to state the consideration in the deed at $5000, and the deed recited that consideration. G. C. Kitchen stated to the notary that the land was worth $7000, and that he owned a five- *359 sevenths interest. Defendant was not present when the deed was prepared and signed, but was present in a few minutes thereafter and heard the deed read over wherein a consideration of $5000 was recited. W. H. Baker, a merchant, was a witness for plaintiffs and testified: “Q. Did he (G. C. Kitchen) talk with you about his business affairs? A. Not much. Q. Did he say anything about this farm? A. Yes. Q. Tell the court what he said about this farm. A. He said that was all he aimed for Ed to have. By Mr. Woodside. I object to that answer. It is not competent. By The Court: The objection is overruled. To which action of the court defendants excepted. By Mr. McGee: Q. What else was said Mr. Baker, about Ed getting the farm and making a living out of it? A. That is what he said, he aimed for Ed to have the farm, and ‘I don’t aim for him to have anything else; if he can’t make a living out of that farm, he would have to do without it.’ By Mr. Woodside: We renew our objection to that question and answer. By The Court : The objection is overruled. Defendants excepted. By Mr. McGhee : Q. Do you know what his feelings were towards these two children, the plaintiffs in this case? A. I think he thought as much of them as Ed; the way he talked to me he aimed for them to have their part.” Bob Kitchen, a brother to G. C. Kitchen, testified that about a year or more before his brother’s death that he and his brother were down at the farm deeded to E. C. Kitchen, and that his brother said on this occasion: “I am going to deed this place to Ed. I aim for him to have that much above what the other heirs get; he has worked and helped me make it, and the other heirs have never done nothing for me.” Dill Eaves a witness for defendants, and a brother of defendant Sarah Kitchen, testified that, three or four years prior to the date of the trial, which was April 18, 1924, G. C. Kitchen said to him that he was going to give the farm in question to his son Ed. ‘ ‘ He told me about *360 the same thing two different times; he told me about it before they moved down there, that he was going to give the place to Ed. They were building a barn then, the first one, and he took me over the place and showed me the place. He told me Ed had so much better place than him and me had to start with, if he couldn’t make a living on it, he ought to do without a living. ’ ’ Defendant Sarah Kitchen testified, but added nothing definite to the solution of the question of advancement. When asked to tell all she knew about the matter she said: “Well, he wanted to make Ed a deed to the place and so he did.”' She also stated that there was no note taken and no account made against E. O. Kitchen for the deed, and that whatever interest she had in the farm she by the deed gave to her son. The above is all the evidence on the question of advancement. Both sides below and here have treated the question of advancement as one for the equity side of the court and we shall so consider it. Defendants complain of the admission of the evidence of witness Baker as to what G. C. Kitchen said. G. C. Kitchen left some estate in addition to the farm in question. Considering the remaining estate and the value of the farm the evidence of Baker tends to show that the conveyance of the farm was intended as an advancement. This character of statement or declaration has been held incompetent when not made in the presence of the one favored, on the theory that it is in the nature of self-serving, that is, that such a declaration is in the interest of the declarant. [McDonald v. McDonald, 86 Mo. App. 122, l. c. 125; Waddell v. Waddell, 87 Mo. App. 216; Nelson v. Nelson, 90 Mo. 460, 2 S. W. 413.] At the time Baker testified the issues of undue influence and mental incapacity were before the court as well as the issue of advancement. The evidence of Baker was competent on the other issues, and the objection was properly overruled. [Lefever v. Stephenson, 193 S. W. (Mo. Sup.) 840.] But considering the cause at bar as in equity the *361 ruling below on the competency of Baker’s evidence is not of consequence, since we try the cause here de novo, and and it is our duty to consider the competent evidence on the question of advancement, and affirm the judgment if for the right party, regardless of the fact that the lower court may have considered maker’s evidence on the question of advancement. [Signaigo v. Signaigo, 205 S. W. (Mo. Sup.) 23.] The evidence of the notary as to what G. C. Kitchen said at the time the deed was signed is competent as , a part of the res gestae. [McDonald v. McDonald, supra] The notary at the time of the conveyance asked what consideration should be placed in the deed, and G. C. Kitchen directed that the consideration be placed in the deed at $5000. He stated that the farm was worth $7000 and that he owned a five-sevenths interest. He did not state that he was making a gift of the farm to his son. In a few minutes thereafter the son came in and in his presence and in the presence of the grantors the deed was read over by the notary and the son remained silent as to the $5000 consideration recited in the deed. The learned chancellor had the witnesses before him. He was in better position to' reach a just conclusion that are we. It is our duty to give due deference to the conclusion reached below. In view of the presumption that the conveyance at bar was intended as an advancement and not as a gift, and in view of the fact that the burden of overcoming this presumption was upon defendants, and giving that deference to the finding helow that we should, it is our conclusion after a careful consideration of this record that the judgment below was for the right party and should be affirmed, and it is so ordered. Cox, P. J., and Farrington, J., concur.