
    Morton v. Massie.
    1. Declarations made by one likely to become heir of an estate, in the life-time of the intestate, as to the condition of his property, will not be permitted, after death, to be given in evidence.
    2. A relinquishment by the husband toa co-heir of the distributive share of the wife to lots belonging to the estate of her deceased father, is no bar lo the husband’s subjecting the same lots to any just demands which he may have against the estate of the deceased.
    APPEAL from the Circuit of Marion county. In Chancery
   Tompkins, J.,

delivered the opinion of the Court.

Morton files his bill against Massie and others, and had a decree in the Circuit Court of Marion county, sitting as a Court of Chancery, from which Massie appeals to this Court.

Morton charges in his bill, that sometime in the year 1821, one Hugh Shannon; senior, purchased of one John McCune, two certain lots of ground in the town of Palmyra, in said county of Marion; that the deed for said lots was made by Mc-Cune to Hugh Shannon, senior, but that the purchase money was paid by Hugh W. Shannon, junior; and that sometime in the year 1825 or 1826, said Hugh, senior, made his last will and died, devising to said Hugh W., his son, the lots aforesaid; that said Hugh W. had taken possession of said lots and built on them, and hitherto kept possession of them; that the purchase of said lots was made for the use of Hugh W. Shannon, and since the death of Hugh Shannon, senior, his heirs had transferred all the interest they might have in said lots to said Hugh W. Shannon; and that in November, 1829, Morton the complainant became the purchaser of said lots at a Sheriff’s sale, not knowing of any claims or pretensions to them except those of Hugh W. Shannon, against whom the execution aforesaid was issued ¡ that since the time he purchased said lots as aforesaid, the said Massie the defendant who is married to one of the heirs of Hugh Shannon, senior, and who, he was informed and believed, had relinquished his interest in said lots to said Hugh W., had administered on the estate of said Hugh, senior, and claimed to subject the said lots to the payment of the debts of the deceased, and particularly to the payment of one which said Massie claimed to be due to himself from the estate of said deceased, and was proceeding to subject the said lots to the paymeut of such debts as might be proved against the estate of said deceased, and prays that said Massie may be restrained, &c.

Massie answers, admitting himself to be administrator of deceased ; denies that the lots aforesaid were paid for by Hugh W. Shannon, and that the heirs of Hugh, senior, had conveyed all their interest in said lots to said Hugh W. Shannon j he says that he signed an instrument of writing conveying all his right, as distributee of said deceased, in said lots, on condition that all the other distributees would also sign said writing, and upon condition that Hugh W. would satisfy and pay this respond" ent a claim or debt due him from the deceased, to the amount of seven hundred dollars, none of which had been paid, and denies that the complainant was a purchaser without notice, &c., and claims said lots as administrator; he also denies that the deceased made a will.

McCune, a witness, states that he made the contract with Hugh W. Shannon for the lots, and received pay from him; and doe's not know that Hugh, senior, was present at any time, either when the bargain was made or when payment was made, but that the deed was made to Hugh Shannon, Senior. It was proved that in 1819, Hugh Shannon, Senior, moved to Missouri, and in 1821, Massie, the defendant, also came and brought on property for Hugh, Senior, part of which was delivered to McCune in payment for the lots aforesaid.

It was proved by the complainant, that Massie the respondent, had declared that all the property brought by Hugh, Senior, belonged to Hugh W., and that he procured the father to make a deed for a lot which was bought of McCune at the same time the lots in question were, and which he had sold and for which he received the money.

On the contrary it was proved by the respondent that the father was, with great difficulty, prevailed on by his wife to make the deed, and asserted his determination to keep the remainder of the lots for the use of his old age. Hugh W. Shannon testified that the lots in question and others at the same time, were purchased by his father from McCune and paid for by him in property brought from Kentucky as before mentioned; he says it consisted of chains, saddies, bridles, &c., which his brother had sent to his father to satisfy a debt which his brother owed to his father. Witness says he spoke to his father about purchasing the lots, but cannot state whether he alone, his father alone, or both of them together, spoke to John McCune about them.

For the complainant, it is contended that Hugh, the son, having purchased the lots and paid for them, the conclusion necessarily follows that they were purchased with his own funds; and this presumption is strengthened by the declaration of Massie, that all the property brought by Hugh, Senior, to Missouri, belonged to Hugh the son; and consequently, the father would hold the property of the son as trustee for the sons creditors, and they rely on 11 Johnson’s Rep. 91. 16 J. R. 197. 13 same 463.

On the other hand, the counsel for the defendants contend, that the evidence given sufficiently establishes that the property with which the lots were bought, belonged to the father, as it was brought to the country by Massie two years after Hugh Shannon, Sen’r. came, and could not in strict parlance be said to be brought to the country by Hugh Shannon, Sen’r. The circumstance, too, of the deed being made to the father, it was contended, contributed to raise the presumption that the son throughout acted for his father.

It may be observed that the declarations of Massie are not competent testimony in this case. Those of Hugh Shannon, Sen’r. would have been, as they would have been contrary to his own interests; but these declarations of Massie being made in the lifetime of Hugh, Sen’r., were not admissable, but not being objected to, they, as well as much other testimony in this cause, have been acquiesced in by each party by an implied consent. They are certainly edtitled to but very little credit, a careless conversation, perhaps inaccurately repeated, and not well remembered, ought to have but very little weight. Such is the character, we think, of these declarations. We are decidedly of opinion that the weight of testimony is for the defendant, and that the funds with which the lots were purchased belonged to the father. The answer of Massie fully refutes the very slight presumption raised by his declarations in the lifetime of the intestate. That all the property brought by Hugh the father, belonged to Hugh the son. For he denies in the most explicit terms, that the lots were purchased by Hugh the son.

We are moreover of opinion, that his relinquishment to Hugh W., of his distributive share of the lots in right of his wife, would be no bar to his right to subject the same lots to the payment of any just demand he might otherwise have against the estate of the deceased, even had such relinquishment been proved. In our opinion the Circuit Court erred in decreeing for the complainant; its decree is therefore reversed, the injunction dissolved, and the bill dismissed.

Wash, J.,

dissenting.

In this case, I dissent from the opinion of the Court. The bill, it is true, sets out the matter in a lame, confused and somewhat contradictory manner; my understanding of it is, that it charges the purchase to have been made in the name of the father for the use of the son; that is, that the deed for the land had been taken in the name of the father, who thereby became in law the purchaser, but that the money was advanced by the son,;who caused the title to be made to his father, with an understanding that it should be held in trust for the son. From the interrogatories, the answer and the evidence taken on both sides without objection, it seems to me clear, that the respondents so understood the charge as collected from the whole bill. This charge, it seems to me, has been sustained by the testimony taken in the cause. The father before the removal of the parties to Missouri, is shown to have parted with tile forty acres of land reserved for his support upon the division of his estate in Kentucky, to his son James, who undertook to support his father, &c. After-wards the respondent Hugh is seen exchanging with his brother James the portion of land allotted to him in the partition, for James’ laud, and taking upon himself the care and support of their father. Then the old man, James and Hugh are seen uniting in a conveyance of about seventy acres of land, including the family residence and the forty acres reserved originally for the father’s support; and it is clear, that from the proceeds of this sale the lots in dispute were paid for. The terms upon which the transfer from the old man to his son James and upon which the exchange between James and Hugh were made, do not appear. The legal estate to the land conveyed by them jointly, seems to have been, however, in the son Hugh. This fixes the fund out of which the lots were paid for, and this fund was Hugh’s. The improvement of the property by Hugh, his receipt of rent for the buildings erected thereon, his sale of one of the lots and the subsequent conveyance of the old man in accordance with Hugh’s contract, with the ineffectual effort made by him to convey by will the residue of the lots to his son Hugh, taken in connection with the evidence of McCune, that the old man had not been seen or known in the contract for the sale of the lots, and that payment for the same had been made by young Hugh, altogether satisfy my mind that it was intended from the first that the lots should be held in trust by the father for the son. But this is not now a question between the resiid que trust and the trustee: nor between the eeneral creditors of the trustee (or person holding the legal title) and the cestui que trust. The proof in such a case might perhaps he deemed inadequate; here Massie, one of the heirs or distributees of the old man, and the son who might claim as cestui que trust, are seeking, as is clearly shown from their answers, and a mass of testimony in the cause, to place the fund which belongs in equity to the son, out of the reach of Hugh’s creditors, by subjecting it to the stale demand of the brother-in-law, Massie; who had lain by for three or four years during the old man’s lifetime, and for three or four after his death; and who had not only declared that the heirs of old Hugh knew that all the property brought from Kentucky belonged to young Hugh, but had shortly after the death of the old man, executed a release to young Hugh of all his interest as distributee in the estate of the old man, and particularly to the lots in question. So far as Massie and young Hugh are concerned, I think the decree of the Circuit Court should stand.  