The action was to set aside a conveyance made by Edward E. Gwynne, now deceased, to his mother, Louise Gwynne, also deceased. The deed was executed on the 8th of February, 1901. The court found that the grantee had advanced and paid to the grantor the sum of $6,000 in consideration of the said conveyance, which sum was the full value of the interest of the grantor in the said premises; that this conveyance was made by Edward E. Gwynne to his mother, Louise Gwynne, in good faith for an adequate consideration, and without intent to hinder, delay or defraud his creditors.
The action being based upon fraud the burden of p>roof was upon the plaintiff to establish fraud by competent evidence against the grantor and grantee. Both parties to the conveyance being dead it was sought to establish this fraud by an examination of the grantor and grantee in supplementary proceedings against the grantor. The examination of the grantor was on January 9, 1902, and the examination of the grantee on February 13, 1902. The examination of the grantor was not competent evidence as against the grantee, she not being represented upon that examination and having no opportunity of cross-examining the witness. There is nothing in the examination of the grantee which was competent evidence against her or her successors in interest to justify a finding that the conveyance was made with intent to hinder, delay and defraud creditors. She testified that she had advanced a sum of money, exceeding $6,000, to the grantor, and that this conveyance was taken in payment of such advances, and there is no evidence to contradict this statement. Assuming that the court was not bound to believe this statement, if it is not believed, there is then no evidence as against the grantee that there was no consideration for the conveyance, and nothing that would justify this court in reversing the finding of the trial court that the conveyance was for an *117adequate consideration and was not made with intent to hinder, delay and defraud creditors. So far as the value of the property is concerned an examination of the testimony of the only expert called is sufficient to show that it was absolutely unreliable. Here was an interest in a piece of real property of which the grantor was only entitled to an undivided interest in a remainder dependent upon a life estate of a person fifty-seven years of age. There was no evidence to show the market value of such an interest at the time the conveyance was made. The life tenant.might live for many years and the grantor would at his death be entitled to an undivided interest in the property, which would require a partition suit to realize when the grantor or his successors in interest become entitled to the possession of the property. The value of such an interest in real property cannot be determined by a consideration of the value of the property owned in fee at the time of the conveyance with a deduction for the probable duration of the life of the life beneficiary and, as before stated, no attempt was made to prove the present market value of the interest of the grantor at the time the conveyance was made.
On the whole case I think the finding of the trial court was sustained by the evidence and that the judgment appealed from should be affirmed.
Patterson, P. J., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event.