#### Columbia Ellis *et al*Appellees, v. Samuel Newell, Appellant and Flora Newell *et al*Defendants.

1 Advancement: gift: burden of proof. A voluntary conveyance to a child is presumed to be an advancement, and the burden is on him who claims it to have been a gift to establish that fact.

2 Subsequent Declarations of Donor: when admissible. Subsequent declarations of the donor, not a part of the *res*gestx, are inadmissible to show that a conveyance to a son is a gift rather than an advancement.

*723 Gift; evidence of: In a suit for partition, the widow of intestate, who is a party thereto, is an incompetent witness to show that a transfer to a son was a gift rather than an advancement.

*Appeal from Wapello District Court.*— HoN. M. A. Kobebts, Judge.

Friday, April 10, 1903.

Suit in equity for the partition of real estate. From a decree finding that a conveyance of land from a common ancestor to defendant Samuel Newell was an advancement, he (Newell) appeals.

*AMimed.*

*W. R. Wilson*and *McNett c& Tisdale*for appellant.

*Jaques c& Jaques*for appellees.

DeeMer, J.

T. J. Newell died intestate, August 19, 1900, seised of five hundred and eighty-eight acres of land in Wapello county, Iowa. He left surviving a widow, Margaret Newell, who is defendant -in this case, ten children, nine of whom were daughters, seven of these being plaintiffs in the case and two defendants, and one son, Samuel, who is appellant. The action was brought to partition the lands belonging to the deceased at the time of his death. The widow’s distributive share seems to have been determined in probate before this action was tried; but an appeal was taken by plaintiffs from the order alloting her share.

In January of the year 1900, T. J. Newell bought of one Dolts ninety-three and one-half acres of land, paying him $3,500 therefor, but the title to the land was taken in the name of Samuel, who held it at the time of trial. The deed conveying the property is an ordinary warranty deed, for the consideration heretofore named, and it expressly recites that the consideration was paid “by T. J. Newell for Samuel Newell. ” Plaintiff contended, and *73the trial court found, that this constituted an advancement to Samuel, which should be taken into account in making the partition.

Samuel Newell contends that the transaction was a gift, and that in addition thereto he should receive a share of the real estate. The value of the estate, after deduct- . burdeii <§ift: pr°°f. ing the widow’s share and other charges, is about $20,000, so that if the purchase price for £he Dolts land is treated as an advancement Samuel Newell has already received something like $1,000 more than his share. The issue between the parties is thus sharply defined, and the law involved is well understood, except as it bears upon the admissibility of evidence in cases of this .character. The nature of an advancement has been so often stated that we need not take up space with a definition of the term. Moreover, it is now well established doctrine in this state that a voluntary conveyance from parent to child is presumed to have been an advancement, and the burden is upon him who claims it to have been a gift to prove it.

The gist of the whole matter is the intent of the donor at the time of the transfer, and this may be established by his declarations prior to the time of the transfer or contem-2. subsequent ofdonor:°ns missibie. poraneous with it. *Middleton v.*Middleton, 31 Iowa, 153; *Phillips v. Phillips,*90 Iowa, 541; *Cline v.*Jones, 111 Ill. 563; *Merkel’s*Appeal, 89 Pa *.340; Eastham v.*Powell, 51 Ark. 530 (11 S. W. Rep. 823); *Powell v.*Olds, 9 Ala, 861. But such declarations, like other admissions, are generally regarded as unsatisfactory evidence on account of the ease with which tl ey may be fabricated, the impossibility of contradiction, and the consequences which the slightest mistake or failure of memory may produce. *Baker v. Leathers.,*3 Ind. 558; *Martin v. Town of Algona,*40 Iowa, 390. Whether or not subsequent declarations made to a stranger are admissible is a proposition on which the authorities are in *74hopeless conflict. When so close to the main transaction as to be part of the *res gestee*they are no doubt competent,, and whenever it may be said that they are against the-interest of the declarant they are doubtless admissible. The character of the transaction is fixed when made; although an advancement may be changed to a gift. *Sherwood v. Smith,*23 Conn. 516. But a gift cannot be converted into an advancement simply by the will of the donor. *Lawson's Appeal,*23 Pa. 85.

Samuel Newell is relying upon certain declarations-made by T. J., his father, long subsequent to the conveyance, tending to show that the transaction was a gift. The-declarations were not part of the *res gestae,*and, if admissible at all, the evidence being hearsay, it must be because-such declarations were against interest. There are cases holding that they are. *Gunn v. Thurston,*139 Mo. 339 (32 S. W. Rep. 654); *Watkins v. Young,*31 Grat. 84; *MeDearman v. Hodneit,*83 Va. 281 (2 S. E. Rep. 644); *Autrey v. Autrey's*Adm’r., 37 Ala. 614. But we do not regard these-cases sound on principle or sustained by. authority. The interest of the declarant, which makes his derogatory admissions or statements admissible, is a pecuniary, or proprietary one, and even in such-cases these declarations are not generally received when the title of a third person is involved. *Westeott v. Westcott,*75 Iowa, 628; Greenleaf Evidence (14th Ed.) section 147; *County of Mahaska v. Ingalls,*16 Iowa, 81; *Moehn v. Moehn,*105 Iowa, 710.

Were the dcelarations said to have been made in this case by T. J. Newell after the deed to Samuel statements derogatory to any pecuniary, or proprietary interest held by him in the property? We think not. An- advancement is a gift, and after it is made the donor has no interest whatever therein, although, as we have said, he might doubtless have converted it into a simple gift. But there is no claim in this case that he did so, and all the testimony offered had reference to the donor’s intention atthe time the deed was *75made. Whether gift or advancement, the donor lost all pecuniary interest in the property.

The only parties in interest in such cases are the survivors of the donor. They, of course, had an interest in knowing whether or no the property should be brought into hotchpot or treated as a pure gift, but the donor had no further pecuniary or proprietary interest in it. Under the statutes of this state advancements for the purpose of distribution and division are treated as part of the estate, but for no other purpose. The donee cannot be required to refund any portion thereof, nor can they be taken for debts. Code, section 3383. Indeed, they create no right of .property in the estate. *In re Will of Miller,*73 Iowa, 118. T. J. Newell never at any time owned the property in this case. The conveyance was from Dolts to Samuel Newell, and the transaction was either a resulting trust, a gift pure and simple, or an advancement. His declarations to the effect that it was not a resulting trust were no doubt admissible for they would clearly be against interest, as in *Culp v.*Price, 107 Ioiva, 136. But there is no claim of resulting trust in the case. The transaction was a gift or an advancement, and in either case the donor lost all interest in the property when the conveyance was made. This exact point was ruled adversely to appellant in *Thistlewaite v.*IMstlewaite, 132 Ind. 355 (31 N. E. Rep. 496.) See, also, *Frey v.*Heydt, 116 Pa. 601 (11 Atl. Rep. 535); *Hatch, v.*Straight, 3 Conn. 31, (8 Am. Dec. 152); *Williams v.*Williams, 32 Beav. 870; *House v. Woodard,*5 Cold. 201; Thornton on Gifts, section 587; *Humbly v.*Stainton, 24 Ala. 712. In *Middleton v. Middleton,*31 Iowa, 151, dying declarations of the donor were offered in evidence to show the character of the transaction. It was there held that such declarations were inadmissible. True, the discussion went to the point of their being admissible as dying declarations, but had they been admissible as against interest or as evidence of intent the court doubtless *76would have so held. We do not think subsequent declarations, not a part of the *res gestae,*are admissible to show that a transfer was a gift rather that an advancement.

II. But one other question of law is involved and that the admissibility of certain testimony from the widow, Margaret Newell, regarding personal communications and 3: gift: evi-.missibiiity. transactions had withjher deceased husband to the effect that the transfer in question was* a gift and not an advancement. The witness was a party to the suit, and under the express language of the statute she was an incompetent witness. *McCorkendale v. McCorkendale,*111 Iowa, 314. In *Conger v. Bean,*58 Iowa, 321, relied upon by appellant, the case as to the witness had in effect been dismissed. The widow was a proper party to this suit, and she was never dismissed therefrom. True, while this suit was pending she secured an allotment of her share in'the probate court, but plaintiffs have appealed jfrom that order to this court, and there is no reason for saying that she was not a party or interested in this suit. Her testimony was inadmissible.

III. Having now disposed of the law’ question, we go to the facts, in the light of the law thus announced, and with other well settled and undisputed rules in mind, have no difficulty in concluding that the decree of the trial court is correct. The whole doctrine of advancements is' founded on the old equitable maxim that “equality is equity;” hence the rule that in such a case as this the transaction is presumed to be an advancement, with the. burden on him who claims otherwise to prove it. We think defendant has failed to show that the deed was a simple gift to him. The testimony as to what occurred when the deed was made is clear and convincing, and points almost conclusively to the thought that an advancement was intended. Such evidence is much more potent than random statements, either before or afterward. Moreover, the conduct of Samuel has not at all times been *77consistent with his present claim. The prior declarations made by T. J. Newell are about as consistent with one theory as the other. Taking the case as a whole, we are satisfied that the trial court arrived at a correct conclusion. It is not our custom to set out the evidence on which we base our conclusions, and there is no reason here for departing from the rule.

The decree of the district court is aebirmed.