Phebe A. Goodman, appellant, v. Luvina Smith et al., appellees, 94 Neb. 227

Sedgwick, J. Rhebe A. Goodman began this action in the district court for Johnson county to establish her interest in certain real estate in that county which she claimed as an heir of her father, Thomas Phippin. The district court entered a judgment in favor of the defendants, from which the said Phebe A. Goodman appealed. Afterwards she died, and the action was revived in the name of her husband, Thomas Goodman, as administrator of her estate. Thomas Phippin died in Waukesha county, “Wisconsin, in 1847.

He left surviving him his widow, Ann Phippin, and two children, the said Phebe, afterwards Phebe Goodman, and another daughter, who a few days later died in infancy. The widow, Ann Phippin, afterwards married Worthy Luce, and two children were born to them, the defendant, George Luce, and the defendant, Luvina Smith, formerly Luce. Phebe’s mother, Ann Luce, formerly Ann Phippin, died in 1901 in Johnson county, Nebraska, and afterwards, in June, 1909, Worthy Luce died intestate in that county.

The petition alleges that when Thomas Phippin died he was the owner of 40 acres of land in Waukesha county, Wisconsin, and some personal property, and that under the law of Wisconsin at the time his two daughters inherited the land, and, upon the death of the younger «laughter, the daughter Phebe inherited her interest in the land, so that Phebe became the owner of the 40 acres of : and; that this 40 acres of land was afterwards sold for about $1,600, and with the proceeds, together with about $2,000 realized from 20 acres of land in Waukesha county owned by Mr. and Mrs.

Luce, the real estate in question in Johnson county was purchased by Mr. and Mrs. Luce, so that this plaintiff is entitled to an undivided four-ninths interest in said real estate. After the death of Mr. and Mrs. Luce, these defendants, George Luce and Luvina Smith, claimed to be the owners of the land in Johnson county as the heirs of Worthy Luce, and that their half sister had no interest therein. Hid Thomas Phippin purchase and pay for the 40-acre tract?

If he did, have the proceeds realized from that 40 acres been traced by this evidence to the purchase of the land held in the name of Worthy Luce at the time of his decease? The deposition of one Ira Redford was in evidence upon the trial. He was a brother of the former owner from whom it is claimed Mr. Phippin purchased the land. He was working for Mr. Phippin at the time. He testified that Mr. Phippin gave his brother a yoke of oxen in the purchase, but he did not know whether he paid some money also. He saw his brother take the oxen away when the trade was made, and heard Mr.

Phippin say that lie (Phippin) would have no more trouble about complaints that his milldam caused the land to overflow, as he now owned the land himself. This, he says, was a year or two before Mr. Phippin’s death. The witness show's that he was entirely familiar with the land, and with the business relations of his brother and Mr. Phippin, and with all of the persons then interested or in any way connected Avitli the OAvnersliip of the land. He testified positively that his brother sold the land absolutely to Mr. Phippin and received full pay therefor from him. The witness was 78 years old when he testified.

He made mistakes as to dates, or rather failed to be positive in regard to them, as well as other matters of less importance. His evidence shows that he had an active mind and clear ideas Avhen he testified. He might not be expected to remember unimportant matters which happened more than a half century" before, but his evidence seems clear and quite satisfactory as to the fact that the land was sold by his brother to Mr. Phippin, and the agreed payment receiA'ed therefor, and that from the time of the purchase until his death Mr. Phippin exercised the rights of ownership of the land.

This witness and several others testified that from the time of Mr. Phippin’s death this tract Avas generally known as “Phebe’s forty,” and was so designated by Mr. and Mrs. Luce. Mr. Phippin never received a deed of the land, and after his death a deed Avas executed by the former OAvner to Ann Phippin. It recites a consideration of $25, and there is no other evidence cited in the briefs that she paid anything for the land. The consideration named in tlxe deed can always be inquired into, and the preponderance of the evidence is that the consideration for this deed was Mr.

Phippin’s previous purchase and payment for the land. The evidence shows that there was always the best of feeling and entire confidence among these parties. None of them seems to have supposed that it made any difference who was named as grantee in a deed of real estate purchased by them.

This 40 acres and the 20 acres after-wards purchased were deeded to Ann Phippin, after-wards Luce, and, when these two tracts were sold and the Nebraska land purchased with the proceeds, the deed was taken in the name of Worthy Luce, although the 20 acres were bought, or at least improved, with money received from land given Mrs. Luce by her father, and no one claimed that Mr. Luce himself furnished the money with which to buy the Nebraska lands. The three children were apparently treated alike by Mr. and Mrs.

Luce, and they evidently supposed that Phebe had at least as large1 an interest as any of the three children in the property. A short time before his death Mr. Luce attempted to malee an equal division of the three eighties among the three children. He agreed to give each of them an 80, and each of them was to pay to him $1,000, which was supposed to be about one-fourth of the value of the land received.

Upon their agreements to pay this amount he deeded an 80 to each of the three, and they took possession of the land, and Phebe paid the $1,000 according to agreement, but the other two children failed to make any payment. Not long before his death Mr. Luce stated that the three children would get the property, and although some of this property clearly belonged to Mrs. Luce, and all of her children inherited from her equally, and the proceeds of Phebe’s 40 were more than a third of the purchase price of the Nebraska land, still Mr.

Luce assisted by his labor, and perhaps financially, in improving the land, and they all seem to have supposed that the fair proportion to Phebe, under all the circumstances, would be a one-third interest. It is difficult- to determine from this evidence whether Mr. Luce contributed money to improve these lands, and, if so, what amount, and it seems probable that the idea of Mr. and Mrs. Luce in that regard was substantially correct. At least Mrs. Goodman appears to have acquiesced in it. We think that the weight of the evidence is that Mrs.

Goodman’s property contributed one-third of the purchase price of the Nebraska, land, and that she is entitled to share accordingly. It is contended that the action is barred by the statute of limitations. As we have already said, there was no quarreling in this family. Each appears to have been willing to assist the others in any way possible. They all understood in a general way what the interest of each was in the property, and none of them had any reason to suppose that Lis or her right or interest would be denied by the others, until after the death- of Mr. and Mrs.

Luce, when his two children claimed the whole property. The interest of Mrs. Goodman, then, was held by Mrs. Luce in trust until the land was exchanged for Nebraska land, and afterwards was so held in trust by Mr. Luce, and the statute of limitations would not begin to run against the claim of Mrs. Goodman until the parties who held her property in trust denied her rights therein. The $1,000 that Mrs. Goodman paid when she took title to the 80 acres of land above mentioned was invested in other.lands, and she should have the benefit thereof.

A decree should be entered allowing the plaintiff an interest in the land to the amount and value of $1,000, and an equal one-third interest in the remainder. The judgment of the district court is reversed and the cause remanded, with instructions to enter a decree as above indicated. Reversed. Reese, O. J., Letton and Fawcett, JJ., not sitting.