Duling v. Johnson

Ray, J. It must be assumed that the admission in evidence of the statements made by John M. Wilson, a few hours before his death, regarding the future disposition of his property, as “ dying declarations,” was an inadvertence, resulting from the little time often given to the judge during the progress of the trial for consideration of the questions he must pass upon. Few rules are more clearly settled than the one excluding all such declarations, except in a certain class of criminal cases. In this case such evidence could not properly be received on that ground;.and as it did not tend to prove the motive which had induced the person making the statements to execute, or cause to be executed, the conveyances to the other children, there can be no question that it was clearly irrelevant. The statement of John M. Wilson, made to Eveline Wilson, that he desired her husband, James S. Wilson, to execute the conveyance to Matilda and William T., because their mother had worked very hard and never lived to enjoy the property, and he therefore desired her children to have a share over and above the other set of children by his second wife, was a very plain declaration that such conveyance was not intended as an advancement, but as a gift. Indeed, James 8. Wilson could have held the land as his own, and accounted for the money he had received for the purpose of investing in other lands. His proposal to con- • vey on the payment of his expenses was not accepted by John M. Wilson, and he might have treated the land as his. own. But he made the conveyance to the children, and it must be regarded as made for the purpose indicated by the-decedent. So, also, this declaration of intent in regard to-the first set of children must be. regarded in determining-whether.the conveyance procured to be made to James P. Wilson, the remaining one of the first set of children, of property valued at some fourteen hundred dollars, was intended as a gift or an advancement to him. The land conveyed to Matilda and William T. was of the’ estimated! [162] ■value of twenty-five hundred dollars, for the two shai’es; that to the third child, of -the .estimated value of fourteen hundred dollars. These facts, taken together with the declared purpose to make a gift to each of the first set of children, over and above what the second set should receive, clearly proves that such conveyance to James P. Wilson ' was but the result of that purpose, then entertained, though not declared until the later conveyance wasuexecuted to William and Matilda. The intent dedared was t© make a gift to .the.first .set ,of children,-because their mother had not lived to enjoy the result of her toil. That purpose had not been accomplished by the deed he had procured to be made to James P. Wilson, but was fully performed when the conveyance was executed to William and Matilda, making the three children of the first marriage very nearly equal in the amount of property received by each. J. VanDevanter and J. F. McDowell, -for .appellants. J. Brownlee, for appellees. It is certainly proper that all declarations of intent made by a parent, during the execution of a settlement of property among a set of his children, should be admitted in evi- ■ dence to aid in determining whether such purpose was to make an advancement or gift to each of such children. Woolery v. Woolery, 29 Ind. 249, and authorities there cited. In our opinion, the finding of the court that the conveyances were intended as advancements was against the evidence, :and must, therefore, be reversed. The report of the commissioners.should have been set aside, also, on the ground .thatit was toodndefinite, and that the limits of each piece-of property.could not be determined from such report. Judgment reversed,.and-cause .remanded .for ;.a new trial. Costs here .for .appellees.