
    In re Estate of Michael O’Hara. Thomas J. Kinley, Administrator, et al., Appellants, v. John Francis O’Hara, Appellee.
    DESGENT AND DISTRIBUTION: ' Liability of Heir — Advancement— ■ :1 . Difference -Between Value of Property and Amount Paid. An; .ad- . yancement to,an .heir-may..consist of the. substantial difference which may exist between the actual money consideration paid by the heir for property and its actual value at the time of the conveyance] but not necessarily so when, as part of the consideration, grantor-ancestor reserves a room on the premises- for life,"and when'the grantee- . heir agrees to pay the funeral expenses of said grantor, and. adequately to support, him for life.
    EXECUTORS AND ADMINISTRATORS: Advancements — How ■ Issue 2 Tried. A proceeding in probate on the issue whether a conveyance by a father to his son constituted an advancement is triable, both in the trial and the appellate court, as an aetion at law. It follows that a supported finding by the trial court is conclusive on the appellate ■ court.' (See Book of Anno., Vol. I, Sec. 11431.)
    CONTRACTS: Consideration — Agreement to Support Grantor, Prim-3 eiple recognized that ample consideration for a deed of conveyance may be found in the agreement of the grantee to support the grantor ‘ for life, even though it may ultimately develop that the value of the property materially exceeds the value of the support.-
    APPEAL AND ERROR: Review — Party Entitled to Allege Error. A 4 party may not lodge a complaint against the reception in evidence ‘ ‘ of matter, which he himself caused to be introduced. ■
    APPEAL AND ERROR: Review — Postponed Rulings — Presumption. 5' The judgment of the trial qgurt will be presumed to have been based solely on competent testimony when the court so certifies at the time of passing upon postponed rulings and excluding certain testimony thereunder.
    Headnote 1: 18 C.'-J. pp. 933, 935V Headnote 2: 24 C. J. pp. 1050, •1051. Headnote 3: 18 C. J. p. 166. Headnote 4: 4 C. J. p. 703. Headnote 5: 4 C. J. p. 776.
    . Headnote 1: 26 A. L. R. 1106; 1 R. O. L. 670. Headnote- 2: 2 R. C. L. 206. Headnote 3: 8 R. C. L. 927. Headnote 4: 2 R. C. L. 238, 239. Headnote 5: 2 R. C. L. 222.
    
      Appeal from Linn District Court. — John T. Mokkit, Judge.
    January 10, 1928.
    The questions involved in this appeal arose on. objections by an heir to the final report of the administrator of an estate as to proper distribution of the personal assets. The administrator contends that a conveyance of real estate by .the decedent-to said objector should be regarded as an advancement. The court held that the said conveyance was not an advancement, and the administrator appeals.
    
    Affirmed.
    
      Carr •& Carr, for appellants.
    
      
      Charles J. Hass, for appellee.
   Faville, J.

Michael O’Hara owned a farm of 240 acres. For some time prior to his death he had been a widower. He died intestate on December 21, 1922. He was survived by one son (the appellee), two adult daughters, and three grandchildren, who are the children of a deceased daughter. He left personal property valued- at $21,803, and a residence property in the town of Coggon, worth approximately $1,600 or $1,800. On October 11, 1922,. the decedent conveyed said 240-acr.e farm to the appellee.- The deed recites that it is executed “in consideration of one dollar, and other good and valuable considerations.” The deed contains the following clause:

“The grantor herein reserves the right to mate his home upon the.premises during his lifetime, reserving also one room in the-home as his during his lifetime. Also requires that he be furnished proper board and proper care, comforts and.attention at all time by grantee, including his- last sickness. All of these together with the funeral expense, the grantee herein is charged with as part of the consideration of above described premises.”

It is admitted of record that the money consideration for said deed was in fact $12,000, of which $4,000 was paid in cash at the time, of the execution of the deed, and the balance was evidenced by a note of $8,000, secured by a mortgage on said premises, which note and mortgage were among the assets of the estate; and have been collected by the administrator. At the time of the execution and delivery of said deed, the deeedent was living with the appellee on said farm, and had been so living since the preceding September, and he continued to live there until the time of his death, on December 21, 1922. At the time of his death, the deeedent was 87 years, 5 months, - and 20 days old. The decedent had no illness previous to his death, and was apparently in good health, and was found dead in his bed.

I. Appellants’ claim is that the difference between the value of the said land and the $12,000 which the appellee paid in money is an advancement, and should be charged against the appellee in the distribution of-the-personal assets-of said estate.

It is the rule in this state that, where there is a voluntary-gift frdm a-parent to a ■ childpit is- presumed, in the-absence of evidence'to the. contrary, to:be an-advancement,' chargeable -against' the child’s- share in'the estate of the--parent who dies intestate. '• Section 12029, Code of 1924 ; Burton v. Baldwin, 61 Iowa 283; McMahill v. McMahill, 69 Iowa 115 ; Phillips v. Phillips; 90 Iowa 541; Finch v. Garrett, 102 Iowa 381; Bissell v. Bissell, 120 Iowa 127; Calhoun v. Taylor, 178 Iowa 56; Bash v. Bash, 182 Iowa 55 ; Thompson v. Ohl, 187 Iowa 654; Murphy v. Callan, 199 Iowa 216 ; In re Estate of Francis, 204 Iowa 1237. In -such -a'-case the-intention of the donor at'the-time of -the transfer must-govern, as to whether the conveyance of property shall be - deemed an advancement or an absolute gift. Ellis v. Newell, 120 Iowa 71; Calhoun v. Taylor, supra; Murphy v Callan, supra.

■ - •• It-is-also a well-recognized rule that, where land' is con•veyed-by á parent' -to a nhildj and a-consideration is paid for said- conveyance, if it appears that there is a large and apparent difference--between the consideration so paid and- the actual ; valué of the-land at the :timé of the conveyance, then the transfer-is-to be-regarded as voluntary to the- extent of the difference between the amount paid and the value of the land, and-such ■difference-will be presumed to be-an- advancement. Strong v. Lawrence, 58 Iowa 55; Fuller v: Griffith, 91 Iowa 632; Mossestad v. Gunderson, 140 Iowa 290; Murphy v. Callan, supra, and cases therein -cited.

One other general rule applicable to eases of-this character ■is to be borne in mind, and that is that this action is in probate, and-is tried as an ordinary action. It is reviewed here as-any other ordinary action, upon alleged-errors of law only. : -It is' hot triable in this court de novo. The-finding-of the trial court has the force and : effect of the verdict of a jury, and cannot be disturbed oh appeal if there-is substantial-evidence-in the record to support it. Calhoun v. Taylor, supra; Watt v. Robbins, 160 Iowa 587; McGovern v. Heery, 159 Iowa 507; Art-Aseptible Furniture Co. v. Shannon, 159 Iowa 225; Dodge v. Grain Shippers’ Mut. Fire Ins. Assn., 176 Iowa 316.

With these general rules in mind, we first consider the question as :to whether or not there is: substantial evidence in the record to''sustainr the conclusion of the trial court. The cash payment made by the appellee was- $50 an acre for the entire farm; There is much evidence -in the case with respect- to the-value of the land at-the-time of thé'conveyance. • This-evidence ranges :áll the way from $80 to $150-an acre. It is-, exceedingly difficült'to fix upon Any'definite amount, as being the actual, fair-market value1 of bai'd-'premises at'said timé. "Under the record', we think it may fairly be said that the -actual valué of -the* farm at-the time of- the-transfer was shown to be substantially in excess-of the cash payment of $12,000 which-the appellee paid therefor. ' • ■ .. ...

‘ -But the cash payment-of $12,000 .was not.-the. only-: consid- ■ eration-for'the conveyance. By the-terms of the deed-it'was expressly-provided- that the grantor -reserved-the right to make his home-upon the premises during his¡ lifetime, reserving-a room in the house,-and-was to.be furnished proper board, care, and comforts at ¿11 times,- including his-last sickness, - and that, all expenses'-for such care, support, and .maintenance, including his funeral expenses; were to-be:p-aid by'the- appellee. At the' time of the execution of’said deed,- the;appellée wáá in advanced years, but was in good health; ‘-The: mortality tables which'were introduced-in-evidence showed that-his expectancy .was 2.75' years. The-evidence-shows that, after the execution of-said deed,'the decedent lived: with the -appellee- until' the time-of his death, and that the terms and provisions of- said deed were fully performed by¡ the appellee. The decedent evidently anticipated-the possibility of sickness, and provided in the deed, that the appellee should furnish him proper care during-his last-illness.- ¡Thé-question as to how dong .-the decedent might live, how-great a charge he might become,- how much expense — medical and otherwise-^might-be necessary-for his future care, were all in-the realm of speculation ¡and conjecture-.- It is easily -conceivable that a situation might have arisen in which the appellee would have been required-to perform great service-and to incur large- expense, under the terms of this deed. ’ - ' • - . - ■

We have recognizéd that an 'agreement- to support and care for a-grantor:during- his life is'a valuable consideration sufficient to-support a- deed, even-though it may ultimately turn out that the value of the property transferred was large-u, jn excess of the amount that was required to * j)e paid for the support of the grantor. Steen v. Steen, 169 Iowa 264; Pellizzarro v. Reppert, 83 Iowa 497; Lewis v. Wilcox, 131 Iowa 268; Harlan v. Harlan, 102 Iowa 701; Peter v. Griffin, 184 Iowa 1061; Mills v. McCaustland, 105 Iowa 187; Lynch v. Coolahan, 177 Iowa 179. See, also, Riggs v. Riggs’ Estate, 232 Mich. 579 (206 N. W. 508) ; Denevan v. Belter, 232 Mich. 664 (206 N. W. 500).

Taking into consideration the conflicting evidence with regard to the value of the property at the time, and the terms and conditions of the deed, and the obligations incurred by appellee thereunder, we cannot say, as a matter of law, that the decision of the trial court is so wanting in support in the evidence that we must set it aside. We cannot substitute our conclusions for those of the trial court, where, as in this case, the judgment appealed from has substantial support in the record. In arriving at this conclusion, we have taken into consideration all of the record in the case, including the fact of the execution of a prior will by the decedent, in which a different disposition was made of his property. This will he afterward destroyed.

There is no claim in this record of mental incompetency or of undue influence or fraud. The decedent had a right to make such disposition of his property as he saw fit; and, there being in the record sufficient evidence to sustain the trial court in its conclusions that the presumption of an advancement, if held to obtain, was sufficiently overcome, we cannot, upon this record, hold to the contrary.

II.' There was a plea of former adjudication. This rested on the fact that the heirs of said decedent brought an action in equity to cancel and set aside the said deed, and on cross-petition, title was quieted in appellee. The administrator did not appear in said action as representative of said estate. The appellants assign as error that:

“The court erred if it based its judgment herein upon appellee’s plea of former adjudication.”

The record shows that the proceedings in the action in equity were offered in evidence in this case by the appellants. The appellants are, therefore, in no position to complain of the fact that the proceedings in said action fully appeared in the reeord in this ease. Whether or not said proceedings constituted an adjudication of the matters in issue in this case was not determined by the trial court, either in findings or as a part of the judgment entered. We therefore cannot determine whether or not the same was considered by the trial court in arriving at a conclusion in this case; and whether or not the proceedings in equity constituted an adjudication against the administrator in this action is a question upon which we make m> pronouncement. At this point we hold only that the appellants are in no position to complain of the admissibility of the reeord in the former case, which they introduced in evidence themselves; and, there being sufficient evidence entirely outside of said matter of adjudication to support the conclusion of the trial court, there is no error of law at this point of which appellants can complain, and which can be made the basis of reversal.

III. Complaint is made of the failure of the court to rule upon certain objections that were made to evidence. The record shows that, at the time the objections were made, the court indicated that the ruling would be withheld, and entered at the close of the case, and that this order was not objected to. In ruling on the motion for new trial, the court made a finding sustaining the administrator’s objection which had been urged to certain questions, which ruling had been withheld, and also made a finding to the effect that, in determining said case, the court had considered only such evidence as it regarded as competent and material, and had rejected all other,1 and did not consider or give any weight to other testimony. It will be presumed in such a case that the finding and judgment of the trial court were based only upon competent evidence, and the reeord in this case affirmatively so shows. Hunt & Co. v. Higman, 70 Iowa 406; Spelman v. Gill, 75 Iowa 717; Foster v. Hinson, 76 Iowa 714; Wright v. Farmers Mut. L. S. Ins. Assn., 96 Iowa 360; Finnegan v. City of Sioux City, 112 Iowa 232; Willis v. Weeks, 129 Iowa 525; Good Roads Mach. Co. v. Ott, 186 Iowa 908; Joyner v. Utterback, 196 Iowa 1040. See, also, State ex red. Seeburger v. Dietz, 202 Iowa 1202.

" . We find mo ground of reversal in any o£-the errors alleged by 'appellants.- The judgment appealed- from is — Affirmed.

Stevens; C. J., ánd Evans, Kindig, and Wagner, JJ., concur. . . ‘ .  