White v. White
White v. White
Opinion of the Court
For the third time this case is here upon appeal (64 W. Va. 30, 66 W. Va. 79.) Excluded from participation in the partition of the real estate of which their grandfather, James M. White,, died seized and possessed, Hattie Glover and her sister, Addie-Biffe, appeal. The inquiry now is whether a conveyance by White to John Biffe, appellants’ father, operated as an advancement to their mother, Minerva, a daughter of the grantor, thereby denying further right to share in his real estate except by compliance with § 13, ch. 78, Code 1906, now impossible because of conveyance thereof by Biffe to one not a distributee of the White estate.
The deed to Biffe is brief, and crudely drawn, not even reciting a consideration. The presrimption thence arising is that the land conveyed was intended by the grantor as an advancement to his daughter. Lockhard v. Beckley, 10 W. Va. 87 Kyle v. Conrad, 25 W. Va. 760, 776; McClintock v. Loisseau, 31 W. Va. 865, 869; McClanahan v. McClanahan, 36 W. Va. 34; Roberts v. Coleman, 37 W. Va. 143; White v. White, 66 W. Va. 79; Arnold v. Barrows, 1 P. & H. 1; Watkins v. Young, 31 Grat. 84; Peale v. Thurmond, 77 Va. 753; Bruce v. Slemp, 82 Va. 352; McDearman v. Hodnett, 83 Va. 281. The authorities cited, however, also hold that evidence is admissible to rebut the presumption, and to show either an absolute gift to the-grantee or purchase by him. Appellants, being so advised, introduced evidence with the view of proving a purchase of the-land by their father.
For this purpose, they procured the testimony of several witnesses, among them their father, whose competency -was
Upon the first appeal (64 W. Va. 30), this Court passed upon and discussed at length testimony of the same import and effect as that on which appellants now rely to show purchase, holding it insufficient to establish an absolute gift of land by White to his son Albert. True, the legal title to the land claimed by Albert as a gift still remained vested in the father at his death, being part of the tract of which partition is now
It is contended that the proof detailed tends to rebut the legal presumption arising from the deed, and thereby to show a purchase by Eiffe. Yet the testimony of appellants’ witness Perry is, in effect, to the contrary. He testifies in chief that White, in a conversation with him, said, in substance, that the land conveyed to Eiffe was “Minerva’s part” of his land. His description thereof was that it begun “at the lower end of the bottom below John Biffe’s house and extended to the big mulberry tree up on the Eight Hand Fork.” This description identifies the land actually conveyed as that to which White referred. Besides, Perry says it is the same land mentioned in the conversation, repeating that White told him it was Minerva’s part of his land. Perry also says White told him that, while the land conveyed “as Minerva’s part was not .fit for farming purposes, John Eiffe liked to raise stock, and it would be an excellent stock farm.” It is true, White also said to. the witness that Eiffe had paid on the indebtedness about $1100; yet that statement must be considered in connection with the other fact that, if an advancement, Minerva had received an acreage manifestly in excess of her proportionate share, there being seven children who claim as distributees, to two of whom, Lewis C.
The circuit court did not, nor do we deem it necessary to, rule upon the competency of John Riffe to testify as to conver-, sations and transactions with White; for his testimony, when read, as it was, with that of other witnesses, is still insufficient to establish that for which it was offered, namely, to rebut the presumption of advancement.
Our conclusion, therefore, is that the evidence does not warrant reversal of the decree of which appellants complain.
Decree affirmed. Affirmed.
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