In re Estate of Holbert

Myrick, J.: This is an appeal from a decree of distribution made by the Probate Court. The devisees of the testator claim that the property in controversy was his separate property; on the other hand, the representatives of the wife (now deceased) of the testator claim that the property was the community property of the snouses.

The evidence and the admitted facts are brief, and appear in the bill of exceptions.

July 5th, 1866, James Holbert (the deceased) intermarried with Frances Holbert; December 13th, 1866, James Holbert purchased the real estate in controversy for the sum of $2,000; in March, 1866, he had loaned $3,000 to one Fairchild; and at the time of the purchase, the money loaned to Fairchild not having been repaid, he borrowed of one Johnson $1,800, which went to the vendor in part payment of the purchase-money. A few months after, he repaid the money to Johnson. This was not far from the time that Fairchild paid his debt—about March 15th, 1867.

There had been some proceedings had for a partial distribution, upon which the Court filed findings ; but it does not appear that a decree was entered upon the findings, nor that the parties now in this controversy were before the Court, noi that the Court had obtained jurisdiction to hear evidence regarding a partial distribution. The defendant offered these [259]findings in evidence. The Court sustained plaintiff’s objection, and excluded the evidence. We see ho error in the ruling. The evidence offered does not show upon its face matters that would constitute an adjudication upon the rights of the parties ; and in the absence of such showing, we do not think that the findings were competent evidence.

The following issues were submitted to the jury :

1. Did James Holbert purchase, after his marriage with Frances Holbert, the following land (describing it) ?

2. Did James Holbert pay for the said land out of property he had before marriage ?

The Court instructed the jury :

“If you believe from the evidence that James Holbert, at the time he purchased the real estate mentioned in the first question, intended to pay for the same with money he had prior to his marriage with Frances Holbert, and that he borrowed money to pay for said land on the strength of credit created entirely by the value of his separate property that he had before his marriage, and that he did purchase said land with the money so borrowed, and that he afterwards repaid the money so borrowed with money he had prior to his marriage, and which was his separate property, then the jury should answer the second question, yes.”