In re Estate of Elliott

Decision Date01 April 1889
PartiesIn re Estate of Elliott; Wilson et al., Plaintiffs in Error
CourtMissouri Supreme Court

Certified from the Kansas City Court of Appeals.

Reversed and remanded.

Cosgrove & Johnston for plaintiffs in error.

(1) Under the statute of Missouri, advancements can be brought into the hotchpot in partition only, whether in realty or personalty; and the probate court, in ordering the distribution of the estate in the hands of the administrator cannot consider such advancements. R. S. 1879, sec. 2166; Stewart v. Pattison, 8 Gill (Md.) 46; Hayden v Burch, 9 Gill (Md.) 79; Lawrence v. Raynor Busbee N. C. Law, 113; Jones v. Jones, 2 Murphey (N. C. Law) 150; Smith v. Hoy, 3 T. B. Mon. 93; Quinn v. Stockton, 2 Litt. 348; Stone v. Halley, 1 Dana, 197. (2) Had the legislature intended by section 2166, Revised Statutes, to confer upon probate courts the powers to compel those to whom advancements in real estate had been made by their parents, to come into those courts and account upon the final distribution of the assets in the hands of the administrator or executor, as the case may be, different language would have been employed. If the legislative intent was to add the value of the real estate advanced to the personal estate in the hands of the administrator to be distributed, it would, it is fair to presume, have said so. "If the children of the intestate * * * shall choose to come into partition" (not into "distribution)", "such advancements shall be brought into hotchpot with the estate descended." Only the real estate "descended," the personal property goes to the executor or administrator. The word partition was no doubt used in its legal and technical sense.

Draffen & Williams for defendant in error.

Section 2166, Revised Statutes, was properly construed by the circuit and probate courts to apply to advancements in all cases of intestacy, whether the property left by the intestate consisted of realty, or personalty, or both. "The probate court properly took into consideration these advancements in making the order of distribution of the personalty; to have refused to do so would have been to disregard a plain provision of the law. St. Vrain Case, 1 Mo.App. 294; Nelson v. Nelson, 90 Mo. 460; McReynolds v. Gentry, 14 Mo. 495; Spradling v. Conway, 51 Mo. 51.

OPINION

Black, J.

Henry Elliot died intestate, leaving a widow and two children, namely, Mary, the wife of John A. Wilson, and Albert Elliot. At the final settlement of the estate, there was in the hands of the administrator the sum of $ 1,794.25. Other sums had been paid by him to the widow and children during the course of the administration. During the lifetime of the deceased, he conveyed to his daughter Mary three hundred and twenty-five acres of land, and the deed contains a recital to the effect that she is to be charged therefor, as an advancement, with the sum of $ 11,200. The deceased advanced her in money and personal property in the further sum of one thousand dollars. He conveyed to his son Albert lands by way of an advancement to the amount of $ 9,205. The deceased left four or five hundred acres of land which have been divided between the children and the widow, the latter having elected to take a child's part. Albert filed in the probate court a petition setting up these facts, asking that he and his sister be charged with these advancements in real and personal property and that the final distribution be made on that basis. The probate court made an order in accordance with the prayer of the petition. Wilson and wife appealed to the circuit court, where on trial anew that court made a like order. Wilson and wife then sued out a writ of error from the Kansas City court of appeals and that court reversed the judgment of the circuit court. 27 Mo.App. 218. The case was then certified to this court on the ground that the opinion therein filed was in conflict with the opinion of the St. Louis court of appeals in In re St. Vrain, 1 Mo.App. 294.

The contention on the part of the plaintiffs in error is that advancements can be brought into hotchpot in the partition of real estate only, whether made in real or personal property, and that the probate court in ordering the distribution of the personal estate, in the hands of the administrator, cannot consider advancements.

The subject of advancements is regulated by statute in this and perhaps all of the states of this Union. Kent says the basis of all of them is the provision in the statute of distribution of 22 and 23 Charles II, though there is some difference in the statutes of the different states. 4 Kent (13 Ed.) 419. In Virginia the statute has been quite different at different periods of time. 2 Lomax on Ex. (2 Ed.) 363. It would seem that in some of the states advancements in real estate are to be accounted for in the partition of the real property descended, and advancements in personalty in the division of the personal estate, and in other states no such distinction is made. Our statute therefore must be our guide. It is in these words: -- "When any of the children of the intestate shall have received, in his lifetime, any real or personal estate, by way of advancement, shall choose to come into partition with the other parceners, such advancement shall be brought into hotchpot with the estate descended." R. S. 1879, sec. 2166.

It is argued that an "estate descended" can only mean real estate, as the personal property goes to the administrator; and that the term "parceners" has also a common meaning, and applies only to lands descended by inheritance, and it is with these definitions of the terms that the conclusion is reached contended for by plaintiffs in error, namely, that the advancements can only be considered in the partition of the real property descended.

There is a sense in which it may be said the personal property goes to the administrator. He must inventory the same and such property constitutes the primary fund out of which the debts are paid. But under our law, he has no personal interest in the property. He takes for the sole purpose of administration. When the debts are paid, if there is personal property on hand and it is susceptible of division in kind it must be "partitioned" by and under the proceedings pointed out in the administration law. R. S. 1879, secs. 246, 247. The heirs take this surplus of personal property by virtue of such a partition without any bill of sale or other transfer from the administrator; so that it is not improper...

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