
    Roberts v. Remy et al.
    
      Competency op testimony — Action concerning trust in land — Agent as party — Section 5242, Rev. Slat. — Purchase of land with undivided fund — Title and life estate in parent — Remainder to children — Presumption as to consideration — Burden of proof.
    
    1. In actions coming within the second exception contained in section 5242, of theRevised Statutes, when the agentthrough whom it is claimed a contract was made by a person since deceased is himself a party, his testimony is subject to the same tests of competency that are applicable to the testimony of other parties who sustain the same relation to the issues; and where, as a party, he is adverse in interest to one who claims or defends as devisee of such deceased person, he is not competent to testify as a witness against the devisee, either to his own agency, or to the alleged contract; nor, in such case, are other parties having a like adverse interest competent to testify to such matters, as against the devisee.
    2. While it will be presumed, in the absence of explanatory circumstances showing a different intention, that a conveyance of land to a child for a consideration furnished by the parent ' is a gift or advancement, there is no presumption that a gift is intended when the consideration is paid by the child and the conveyance made to the parent; on the contrary,' in the latter ease, the presumption is that the legal title was so placed in the parent, in trust for the benefit of the child, and the burden is on the holder of the legal title to overcome that presumption.
    3. Where land is purchased with an undivided fund in which the parent has a life estate and the children the remainder, and the conveyance is made to the former, the title will be held in trust for the latter subject to the life estate; and upon the termination of the life estate they will hold the equitable title as tenants in common in the proportion of their respective shares of the fund.
    (Decided April 27, 1897.)
    Error to the Circuit Court of Richland county.
    The suit below was brought by Uretta.Remy, a daughter of Thomas J. Roberts, and one of the devisees under his will, against John W. Roberts and Henry C. Roberts, the only other children of Thomas J. Roberts, who were living at the time of his decease and that of his widow, for the partition of a lot in the city of Mansfield. The petition alleges that at the time of his death, Thomas J. Roberts was seized of certain real estate which was by his will devised to his widow, Susan Roberts, for life; and after her death, by the terms of her will, all of his property was directed to be sold and the proceeds divided equally among his children ; that after the probate of the will, the widow and children united in a sale and conveyance of the real estate of which the testator died seized, for a consideration of two thousand dollars, one-half of which was, by agreement between them immediately invested in the purchase of the lot sought to be partitioned, and constituted the entire purchase price of that lot; and that the legal title to the lot was taken in the name of the widow, in pursuance of the arrangement by which she was to have the use of it as a home, there being- a dwelling house upon it, during her life, and after her death it was to be divided among the children in the proportions provided in their father’s will. The widow, who died in March, 1893, left a will by which she devised the lot in question to the plaintiff in error, who was.made a party to the partition suit, and charged with holding the legal title in trust for the other parties; and the petition prays that if he claimed otherwise he be required to set up his claim, and that his interests in the property be determined* He answered, setting up the will of Susan Roberts? by which the lot was devised to him in fee, and claiming thereunder to be the absolute owner, inasmuch as she held the title at the time of her decease. The record shows, that on the trial in the circuit court, to which the action had been appealed, the plaintiff called as a witness, her brother John W. Roberts, who, against the objection of the plaintiff in error, was permitted to testify to the arrangement as alleged in the petition, under which the property in dispute was acquired, and by which the interest of each in the lot should be that held in the property sold; and, that the arrangement was brought about by the witness at tjie instance of his mother, in order to provide her a smaller home and enable her to use the balance of the money arising from the sale,for her support; and the plaintiff, and her brother Henry, were also permitted to testify on the same subject. The admission of this testimony constitutes the chief ground urged here for the reversal of the judgment below, which was adverse to the plaintiff in error. A further statement of facts appears in the opinion.
    
      Bell, Brinkerhoff ■ c& Mengert, for plaintiff in error.
    The first error assigned and relied on by the plaintiff in error, is, that the court erred in admitting evidence offered on behalf of plaintiff below.
    It will be remembered that William F. Roberts claims, as heir and legatee of Susan Roberts, deceased, and that his interest is adverse to the interest of plaintiff below, and as a proposition of law we maintain, all the parties in this action, having interests adverse to plaintiff in error, were incompetent as witnesses. Section 5242, Revised Statutes.
    This section has been construed by our Supreme Court a number of times, and is fully discussed by that'court in 38 Ohio St., 438, where the oft repeated rule is reiterated, that a party cannot testify where the adverse party claims or defends, as heir or legatee of a deceased person, unless the case comes within the meaning of the exceptions, and none of the exceptions as we view them, could furnish a rule for the admission of the testimony of these parties in this case.
    This same doctrine is announced by the court in Baker v. Jerome, 50 Ohio St., 682, and in Baker et al v. Kellog, in the 29 Ohio St., 663.
    The mere fact that the party stands upon the same side of the case as the heir, guardian, etc., but has interests adverse, does not change this rule. 50 Ohio St., 689; 22 Ohio St., 208; Stevens v. Hartley, 13 Ohio St., 525; Miller et al v. Stokey, 5 Ohio St., 195.
    Henry Roberts had no talk with his mother; she never made any declarations to him that he testifies to, as to the title of the property. Neither does Mrs. Remy testify to any talks with the mother, but simply what John told her ; and looking this testimony over carefully, we can see no proof establishing a trust, under the rule above given. The rule as to the establishment of a trust is followed in the 16 Ohio St., 169, in Stall'et al v. Cincinnati et al., 24 Ohio St., 624; Mathews et al v. Beaman et al., 24 Ohio St., 615; and citing 96 Cal. 58., 30 Pac. 1020; 120 N. Y. 656; 24 N. E. 942; 32 Pa. St. 250; 34 Pa. St., 385; 110 Pa. St., 421; 97 N. S. 624; 112 N. Y. 660; Jones on Mortgages See. 335.
    
      J. C. Baser, for defendants in error. ,
    It is admitted that the purchase money which was used for the payment of the property in question belonged to the defendants in error, subject to the life use of the mother, and that she purchased the premises in question and took the fee in herself.
    Does not this admission entitle the defendants in error to the relief prayed for in their petition, under the Law ?
    In Perry on Trusts, Sec. 144, it is laid down that where the nominal grantee stands in relation of mother to the real purchaser, no presumption of an advancement or settlement will arise; hut it will be presumed to be a trust.
    We also find the rule laid down in 1 Ohio St., 1, that no presumption of á gift or donation will arise unless the purchaser stands in loco parentis to the nominal grantee. Pomeroy’s Equity; Sec. 1038; Bishpam’s Equity, 119, Sec. 30; 5 Ohio St., 256; Wright’s Report, 509.
    Parole evidence is admissible to establish a trust. Perry on Trusts, Sec. 138; Pomeroy’s Equity, Sec. 1040; Bishpam’s Equity; 16 Ohio St., 174; 16 Ohio St., 444; 24 Ohio St., 615.
   Williams, J.

It is sought to sustain the admissibility of the testimony to which objection was made by the plaintiff in error, under the second exception contained in section 5242, of the Revised Statutes, which reads as follows: “When the action or proceeding relates to a contract made through an agent by a person since deceased, and the agent is competent to testify as a witness, a party may testify on the same subject.” The argument is, that inasmuch as John W. Roberts testified that he made the arrangement for the sale of the property which came from his father and for the investment of part of the proceeds in the property in question, at the request of his mother, he was acting as her agent in the transaction, and competent as a witness to prove the transaction, and the arrangement with his brother and sister under which it was completed; and the agent being a competent witness on that subject, the plaintiff, and her brother Henry, were also competent to testify on the same subject.

"We cannot adopt that view. The provision relied on has reference to the agent as a witness, and not as a party to the action. The language “a party,” including any party, “may testify on the same subject” to which the “agent is competent to testify as a witness, ’ ’ evidently refers to him as a witness in a controversy between other persons who are parties to the action; and when he is himself a party, his testimony is subject to the same tests of competency that are applicable to the testimony of other parties who sustain the same relation to the issues.

The plaintiff in error defended in the action below as the devisee of a deceased person, and the testimony complained of related to transactions which could not have occurred subsequent to the death of that person. John W. Roberts was entitled to a share of the property in controversy equal to that of the plaintiff, if her action should prove successful; and, though a. party defendant on the record, he was a party adverse in interest to the plaintiff in error, his codefendant; as much so as if he had been joined as a party plaintiff. His interest in the property sold, and its proceeds was his individual interest, with regard to which he could not deal with himself as the agent of his mother ; he could only deal with her in respect to it in his individual right. So in negotiating the arrangement with his brother and sister, he neeessarily acted in his own behalf,- and they negotiated with him in the same relation. If he had purchased the interest of his brother and sister in the property, and were the only party to the controversy with the plaintiff in error, it would scarcely be claimed that he would be a competent witness to prove the matters to which he testified. Without his testimony there was no proof of the agency; and being1 incompetent to prove the agency in his own behalf, his testimony could not be used to establish it in behalf of the other parties united in interest with him, for that would result in proving it for himself. We think, therefore, that his testimony was erroneously admitted, and as there was a lack of competent evidence of the agency, the foundation for the admission of that of the plaintiff and her brother Henry also fails.

Brit the judgment should not be reversed if there was sufficient evidence to which no objection was made, to establish the trust; and we think there was. It was clearly shown that the property sold belonged to Thomas J. Roberts at the time of his death, 'and that it passed under his will to his widow for life, with remainder to his children in fee, who, with the widow, united in its sale and conveyance for the sum of two thousand dollars. It was further shown that the widow had no other property beside her interest in the money at time the lot in dispute was purchased, and that it was purchased and paid for with one thousand dollars of the money; and, that with other portions of the money, repairs were made on the dwelling house and buildings situated on the lot, of all of which the widow had the entire use and enjoyment as long as she lived. The evidence introduced by the plaintiff in error proves nothing to the contrary, but is in support of the facts above stated; and in view of them, proof that the title was conveyed to the widow under an express trust agreement, was not necessary to the plaintiff’s case.

While it is a familiar rule that a conveyance to a child, of land 'purchased by the parent, is presumed to be a gift or advancement, there is no presumption that a gift is intended where a purchase is made with money belonging to a child and the legal title taken in the name of the parent. On the contrary, in the latter case, the presumption is that the title is so taken in trust, for the benefit of the child; and the burden is on the holder of the legal title to overcome that presumption. It is true, that where the consideration is furnished 'by two or more persons, the share advanced by each, must be a definitely ascertainable aliquot part in order to raise a trust pro tanto; but we perceive no difficulty in the application of that rule in this ease. The parties became the owners of the money, in the interests and proportions in which they held the property from the sale of which it was realized; and at the time of its reinvestment in the property here involved the money remained 1 unapportioned among its owners, who thus took the equitable estate in the new purchase as tenants in common, in the proportions by which they held the former estate. As said in Pomeroy’s Equity, sections 1037, 1038, “the resulting trust in favor of him who pays the purchase money, rests upon the equitable principle that the beneficial estate follows the consideration, and attaches to the party from whom it comes, and when furnished by two or more, the trust results in favor of each in respect to an undivided share of the property proportioned to his share of the price.”

Here, the life estate of the widow having terminated by her death, the plaintiff and her two brothers are the owners of the complete equitable estate as tenants in common, and entitled to have the same partitioned amongst them, and their title quieted as against the claim of the plaintiff in error. -

Judgment affirmed.  