Summary
APPEAL from the Grant Common Pleas.
This was- a petition for the partition of real estate- by the appellants, William Duling and Matilda Duling; in person,, and James P. Wilson and William T. Wilson, by guardian, against the appellees, Hannah M. Johnson (formerly Wilson), Gabriel Johnson, Sarah B. Wilson, and Samuel A. Wilson.
The complaint alleges, that John A. Wilson died,, the-owner in fee simple of certain lands described, in all about two hundred and sixty-seven, acres, leaving;as; his. only heirs-at-law said Matilda Duling (formerly Matilda "Wilson, who has intermarried with said William Duling), James P. Wilson, William T. Wilson, Sarah B. Wilson, and Samuel A. Wilson, his only children, and said Hannah M. Johnson (formerly Hannah M. Wilson, who has intermarried with said Gabriel Johnson), his widow; that said Hannah M. Johnson is the owner by descent from said John M. Wilson, deceased, and entitled to the undivided one-third of said real estate for life, with remainder over to said children of John M.; that each of said five children owns in fee the undivided one-fifth of the remaining two-thirds of said real estate; that said James P., William L., Sarah B., and Samuel A. are minors; that said Samuel A. and Sarah B. are the children of said decedent and said Hannah M., and said Matilda, James P., and William T. are the children of said decedent by a former wife; that said widow and children hold said lands as tenants in common; that the petitioners are desirous of holding their said interests in sevei’alty. Prayer for partition.
The defendant Hannah M. answered, that before her marriage with the decedent he caused one James S. Wilson to purchase certain tracts of land in Grant county, describing them, which land was worth - thousand dollars, which her said husband caused to be conveyed to said James S. Wilson, who held the same in trust for her said husband, who afterwards, to defraud her of her part as his wife, caused the said land to be conveyed by said James S. Wilson to the decedent’s children by a former marriage, the plaintiffs, who still own the same; that said land was purchased with her said husband’s money, and was so held in trust for a long time after this defendant’s said marriage to said John M. And she demanded, that, in addition to her one-third of the lands described in the complaint, one-third of the lands so conveyed to said children should be set off’ to her, or an amount equal thereto of the lands in the complaint mentioned.
Gabriel Johnson, husband of said Hannah M., answered, disclaiming any interest.
Sarah B. Wilson and Samuel A. Wilson answered by guardian ad litem, alleging, in substance, that said John M. caused the lands so held by James S.WiJsonto be conveyed to said Matilda and William T., and caused certain other land to be conveyed to said James P.; and that by means of such conveyances to the plaintiffs, said Matilda had received, by way of advancement from the decedent, fifteen hundred dollars, said William T. one thousand dollars, and said James P. fourteen hundred dollars.
The plaintiffs demurred to the answer of Hannah M. Johnson; the demurrer was overruled, and the plaintiffs excepted.
The plaintiffs then replied to the answer of Hannah M., in two paragraphs, first, the general denial; second, that said decedent was not at any time during his marriage to Hannah M. seized in fee simple of the lands so conveyed by James S. Wilson to said children; and that said decedent at the time of his death had no equitable interest in said lands, but had caused the same to be conveyed to his said children upon a good and valid consideration.
The plaintiffs also replied to- the answer of said, guardian ad litem, in two paragraphs, first, the general' denial;, second, that the several tracts of land' mentioned' in said answer were caused to be conveyed to plaintiffs, not as advancements, but as unconditional gifts, by their said father, and were so intended by him at the- time.
The cause was tried by the court.
The evidence is in the record.
James S. Wilson testified, that his brother, John M. Wilson, the deceased, had been in Grant county, in this State, in 1834, and purchased' two tracts of land and returned home to Yirginia; that he wanted James S. to come west, and gave him two hundred dollars in money,,, and gave him the numbers of two pieces of land; that James S..came and found that one of the pieces was entered;., that he-got numbers and, with tbe money so given him, entered land in Ms own name; that he had to shave said, money to get land-office money; that this land he conveyed to said Matilda and William T., eighteen or nineteen months before the death of their father; that the land so conveyed to Matilda was worth fifteen or sixteen hundred dollars, and that conveyed to William one thousand dollars; that he paid -for shaving said money and expenses of entering the land about fifteen dollars of his own money; that he told his said brother that he would make him a deed for the land if he would repay said sum, but not otherwise, and his said brother never requested him to make such deed; that witness told his said brother that, if he would pay expenses, witness would make a deed for said land to said brother’s children, but said J ohn M. never told witness to do so-; that afterwards witness was told by his own wife that John wished him to convey the lands to William and Matilda, and he did so, to “ suit his own notion.”
Hannah M. Johnson testified, that said John M. Wilson, her husband, purchased a tract of land during their marriage and had the conveyance made to James P. Wilson, his son by a former wife; that he paid about fourteen hundred dollars for it; that this was about four years after they were married; that she never joined in any conveyance of this land; that she and her said husband lived together twelve years; that she did not see money paid for this land, but received her information from her said husband, who received the rents of the land while he lived; and that James P. was thirteen years old when the deed was made to him.
William T. Wilson testified, that he knew of the purchase of the land conveyed to James P., but did not remember when it was; that he heard his father say it was for James P. Wilson.
Eveline Wilson testified, that John M. Wilson said to her that he wanted the land deeded to Matilda and William; that she told James S. Wilson about it; that she heard John say that the reason he had for giving the land to Matilda and "William was, that he thought their mother had worked very hard and never lived to enjoy it, and he wanted them to have it, over and above what the second set of children were to get.
One Lucas testified, that John M. Wilson, on his death bed, about eighteen hours before he died, thinking he was about to die, said he was still getting worse; that he wished his brother James was there; that he wanted the boys to stay on the farm, and work, and take care of things as they had been doing, and give Hannah a good support while she lived; that he wanted the two youngest children and all of the children to go to school; that when Mrs. Wilson was done with the place, he wished William to have it, and he asked Mrs. Wilson if she would agrée to that, and she said she would, excepting to keep James P.; that he wished Sarah to have one thousand dollars when she should come of age, and the youngest boy eighty acres over the river, which, the witness said, was not one of the tracts deeded to the first set of children.
The deeds to the eldest children were given in evidence.
At the proper time, as appears by bill of exceptions, the plaintiffs objected to the admission of the statements made by John M. Wilson at the time mentioned by the witness Lucas, for the reason that they were made long after the lands were conveyed; but the objection was ovei’ruled, and the plaintiffs excepted; and the court allowed the witness to give said statements, only upon the ground that they were dying declarations.
The court found, that Mrs. Johnson had no interest in the lands conveyed to the first set of children, but was entitled to one-third, in fee simple, of the lands mentioned in the complaint; that the lands so conveyed were advancements; that Matilda was thus chargeable with an advancement of fifteen hundred dollars, James P. with an advancement of fourteen hundred dollars; and William T. with an advancement of one thousand dollars; and partition of the land in the complaint described was decreed accordingly.
The plaintiffs moved for a new trial. The motion was overruled, and the plaintiffs excepted.
Commissioners were appointed, who, at a subsequent term, reported that they had set off' to Mrs. Johnson “ sixty-five acres on the east side of the north-west fractional quarter of section nineteen, township twenty-three, north of range nine east, to be cut off by a line parallel with the east line of said quarter; to Sarah B. Wilson the remainder of said quarter, except seven acres in the northern part, her portion. being seventy-five acres; to William T. Wilson seven acres out of the north-west quarter of section nineteen, and sixteen acres on the south end of the east half of the west half of the south-west quarter of section eighteen, in all to said William twenty-three acres; to. James P. Wilson the middle part of the east half of the west half of the south-west quarter of section eighteen, in all fifteen acres; to Matilda Duling the north end of said east half of the west half of the south-west quarter, being about ten acres; all in-township twenty-three, range nine east; to Samuel A. Wilson seventy-eight acres on the north end of the east half of the north-east quarter of section eleven, township twenty-three, range eight east; and the remainder of said tract wo divide equally among the older heirs, Matilda Du-ling, James P. Wilson, and William T. Wilson; which we respectfully submit to the court,” &c.
The plaintiffs filed their written objection to the report, alleging, among the grounds of objection, that the report was too indefinite in the description of - the different shares set off..
The court overruled the- objection, and the plaintiffs excepted.
The plaintiffs moved for a new trial, and then in arrest of judgment, said motions being overruled in their order, to which rulings-the plaintiffs, excepted.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
