Elliot v. Wilson

• Citation: 98 Mo. 379,11 S.W. 739
• Court: Missouri Supreme Court
• Decision Date: 10 June 1889
• Parties: ELLIOT v. WILSON <I>et ux.</I>

11 S.W. 739

98 Mo. 379

ELLIOT v. WILSON et ux.

Supreme Court of Missouri.

June 10, 1889.

DESCENT AND DISTRIBUTION — ADVANCEMENTS — PROBATE COURTS — JURISDICTION.

1. Rev. St. Mo. 1879, § 2161, concerning descents and distributions, provides that, on the death intestate

of any owner of real or personal estate, "it shall descend and be distributed in parcenary," etc. Section 2166 provides that any advancements of real or personal estate made to any of the children of such intestate shall be brought into hotchpot with the "estate descended," if the recipient shall choose to "come into partition with the other parceners." Sections 246, 247, provide that after the debts of an estate are paid the personalty remaining, if susceptible of division, shall be "partitioned," etc. Held, that said sections use the terms "descend," "partition," and "parceners" with reference as well to personal as to real estate; and hence, under section 2166, advancements, whether of realty or personalty, may be brought into hotchpot in the distribution of an intestate's personal estate.

2. Rev. St. Mo. 1879, § 245, authorizing the probate court to order the payment of legacies and distribution of shares, gives the court jurisdiction to adjust the distributive shares by the deduction of advancements of real estate, although it cannot decree a partition of real estate; as in adjusting advancements under the law of hotchpot it deals only with the value of the advancement, and not with the thing advanced in specie.

Case certified from Kansas City court of appeals.

Cosgrove, Johnston & Pigott, for plaintiff in error. Draffen & Williams, for defendant in error.

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 life-time of the deceased he conveyed to his daughter, Mary, 325 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 money and personal property in the further sum of $1,000. He conveyed to his son, Albert, lands by way of an advancement to the amount of $9,205. The deceased left 400 or 500 acres of land, which has 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 a 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 the St. Vrain Case, 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 & 23 Car. II., though there is some difference in the statutes of the different states. 4 Kent, Comm. (12th Ed.) 419. In Virginia the statute has been quite different at different periods of time. 2 Lomax, Ex'rs, (2d 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 life-time, 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." Section 2166, Rev. St. 1879. 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-law 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...