Schmidt v. Littig

28 N.W. 594, 69 Iowa 277

• Court: Supreme Court of Iowa
• Decided: June 21, 1886
• Status: Published

Opinion

Adams, Oh. J.

It seems to be conceded that the defendant executor received of the testator $3,000, and has not repaid the same, nor reported it as an asset of the estate. lie contends, however, that he received the same as a gift. While upon the stand, as a witness for the plaintiff, he testified positively that he received the money as a gift, and gave no note for it. Some question is raised as to the competency of the witness upon this point, but no objection to Ms competency appears to have been made at the time he testified, nor motion afterwards to rule tlie evidence out. We do not think such objection can he urged now for the first time. In addition, he is corroborated by one Mrs. Enderly, who testified to statements made to her by tbe testator. If there was any evidence to tbe contrary, it is impossible to say that there is such as to justify us in finding fraud.

The plaintiff was virtually charged with an advancement or loan of $1,200. In this she claims that she was wronged. It is not denied that she received that amount, hut she contends that the evidence shows that the same was repaid by a conveyance of property. The fact appears to be that tlie plaintiff and her husband conveyed certain real estate to tbe tlie testator. But the plaintiff’s husband bad become involved in debt, and the testator took tbe property with an agreement to pay the debts. What it was worth, or what lie sold it for, or what debts there were, does not appear. .

We think that tbe evidence fails to sustain the plaintiff’s claim.

Affirmed.