Gibson v. Johnson

• Citation: 56 S.W.2d 783,331 Mo. 1198
• Parties: Mary Green Gibson and Clinton Newberry Gibson, Minors, by their Guardian and Curator, H. E. Doerner, Appellants, v. Newberry Johnson, Administrator and Sole Heir of Bonnie Johnson and Dora Smith
• Decision Date: 31 December 1932
• Court: United States State Supreme Court of Missouri

56 S.W.2d 783

331 Mo. 1198

Mary Green Gibson and Clinton Newberry Gibson, Minors, by their Guardian and Curator, H. E. Doerner, Appellants, v. Newberry Johnson, Administrator and Sole Heir of Bonnie Johnson and Dora Smith

Supreme Court of Missouri

December 31, 1932

Appeal from Pemiscot Circuit Court; Hon. John E. Duncan Judge.

Affirmed.

Von Mayes, H. E. Doerner and Ward & Reeves for appellants.

(1) Newberry Gibson, the decedent, by making no reference in his will to his two grandchildren, plaintiffs, nor to their father, the son of decedent, died intestate as to them. Sec 525, R. S. 1929; Miller v. Aven, 34 S.W.2d 116; Lawnick v. Schultz, 28 S.W.2d 658; Ernshaw v Smith, 2 S.W.2d 803; Conrad v. Conrad, 280 S.W. 707; McCoy v. Bradbury, 235 S.W. 1047; Williams v. Roberts, 187 S.W. 19. The word "intestate" in its legal significance, means "without a will." 33 C. J. 477. It is used in the same sense in Section 525 as it is used in Section 311. (2) A conveyance of land by a father to one of his children for a nominal consideration, or for love and affection, is presumed to be an advancement and the burden of showing the contrary rests upon the party denying it. 18 C. J. sec. 258, p. 933; Douglas v. Hammel, 313 Mo. 514; Lynch v. Culver, 260 Mo. 465; Goebel v. Kitchen, 266 S.W. 992. The deeds offered in evidence showed that they were made for a nominal consideration and love and affection, and defendants offered no proof to show they were not advancements. (3) The advancements made by decedent in his lifetime to his two daughters, as shown by said deeds, should be brought into hotchpot. Sec. 311, R. S. 1929; Turpin v. Turpin, 88 Mo. 337.

McKay & Peal for respondents.

(1) Appellants' second point is, that a conveyance of land by a father to one of his children for a nominal sum, or for love and effection, is presumed to be an advancement and the burden of showing the contrary rests upon the party denying. This point is conceded as a general rule of law, but is subject to being rebutted by parol evidence or the acts and declarations of the donor. McDonald v. McDonald, 86 Mo.App. 122; Nelson v. Nelson, 90 Mo. 460; Ray v. Loper, 65 Mo. 470; Lisle v. Huffman, 88 Mo.App. 143. (2) By Section 311, Revised Statutes 1929, it is provided, "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 in hotchpot with the estate descending." The above section only applies in cases of intestacy, and not where there is a will. In Re: Lear's Estate, 146 Mo.App. 642; Wickliffe v. Wickliffe, 206 Mo.App. 42. By Section 525, Revised Statutes 1929, it is provided, "If any person makes his last will, and dies, leaving a child or children, or descendants of such child or children in case of their death, not named or provided for in such will, although born after the making of such will, or the death of the testator, every such testator, as far as shall regard any such child or children, or their descendants, not provided for, shall be deemed to die intestate; and such child or children, or their descendants, shall be entitled to such proportion of the estate of the testator, real and personal, as if he had died intestate, and the same shall be assigned to them and all the other heirs, devisees and legatees shall refund their proportional part." By the plain terms of the above sections of the statute Newberry Gibson died intestate as to appellants and they are entitled thereby to share in his own estate owned by him at the date of his death as if no will had been made by him. By Section 526, Revised Statutes of 1929, it is provided: "If such child or children, or their descendants shall have an equal proportion of the testator's estate bestowed on them in the testator's lifetime, by way of advancement, they shall take nothing in virtue of the preceding section." The doctrine relating to advancement, according to the weight of authority, applies only in cases of total intestacy. 40 Cyc. 1921, sec. E; Coleman v. Smith, 55 Ala. 368; Blanks v. Clark, 68 Ark. 98; Johnson v. Belton, 20 Conn. 322; Marshall v. Wrench, 3 Del. Ch. 239; McNeil v. Hammond, 87 Ga. 618; Grattan v. Grattan, 18 Ill. 167; Trammel v. Trammel, 148 Ind. 487; Hall v. Hall, 132 Iowa 664; Manning v. Thurston, 59 Md. 218; Turpin v. Turpin, 88 Mo. 337; Wickliffe v. Wickliffe, 226 S.W. 1035; Greeland v. Greeland, 65 N. J. 668; Brown v. Kent, 190 N.Y. 422; Jerkins v. Mitchell, 57 N.C. 207; Needles v. Needles, 7 Ohio St. 432; In Re: Ogden, 211 Pa. St. 247; McFall v. Sullivan, 17 S.C. 504; Waldron v. Taylor, 52 W.Va. 284.

OPINION

Atwood, J.

This appeal has been twice heard and comes to the writer on reassignment. It grows out of a suit instituted by appellants, Mary Green Gibson and Clinton Newberry Gibson, for the partition of 275 acres of land of which their grandfather, Newberry Gibson, died seized. In their petition they allege that they are minors and the sole surviving children of Gideon Gibson, a predeceased son of Newberry Gibson; that the said Newberry Gibson left surviving him his widow, Hester S. Gibson, and two daughters, defendants Dora Smith and Bonnie Johnson, who with plaintiffs constitute his sole surviving descendants; and that he left a will, executed in 1924, neither appellants nor their father being mentioned therein, by which he disposed of his property as follows:

"I give and bequeath to my beloved wife, Hester S. Gibson, all of my property, real and personal or mixed to her sole use and benefit for her lifetime, and after her death to my two children, Dora Gibson Smith, and Bonnie Johnson, share and share alike."

It is also alleged in plaintiffs' petition that, by way of advancements, decedent conveyed and delivered to defendant, Bonnie Johnson, during his lifetime and prior to the execution of said will, certain real and personal property exceeding $ 50,000 in value, and as advancements to defendant, Dora Smith, real and personal property exceeding $ 30,000 in value; that the value of the lands owned by decedent at the time of his death was $ 25,000; that subject to the widow's rights therein, which have been acquired by Bonnie Johnson, defendants are each entitled to a one-third interest in the real estate of which decedent died seized, and plaintiffs are each entitled to a one-sixth interest; that all of the property acquired by defendants by way of advancements should be brought into hotchpot in order "that plaintiffs may take their aliquot part of the value of all of said property;" and that defendants having both received by way of said advancements their full shares of the estate of said deceased subject to the widow's rights therein owned by defendant Bonnie Johnson, plaintiffs are entitled to all of said real estate of which decedent died seized. Judgment for partition was prayed in accordance with the allegations of the petition.

Defendants answered admitting certain allegations of the petition, denying all others, alleging that decedent in his lifetime advanced to the father of plaintiffs all of his equal share in decedent's estate and for that reason omitted naming him in his will, and specifically denying that any advancements were made to defendants.

Plaintiffs' reply was in the nature of a general denial. It was admitted at the trial that Newberry Gibson died on August 1, 1928; that defendants are the only surviving children of the deceased and that plaintiffs are the only surviving children of Gideon Gibson, a predeceased son of Newberry Gibson; that Newberry Gibson at the time of his death owned the 275 acres sought to be partitioned; that Newberry Gibson left surviving him his widow, Hester S. Gibson; that since the will of Newberry Gibson was probated said widow has conveyed all her interest in the land of which her husband died seized to defendant Bonnie Johnson; that the said widow declined to act as executrix of said will and thereupon P. S. Payne was duly appointed and qualified as executor, and that no final settlement has been made of the estate of said deceased; that plaintiffs are minors and that H. E. Doerner is their duly appointed, qualified and acting curator.

Plaintiffs offered in evidence a certified copy of the will of Newberry Gibson; record of warranty deeds conveying to defendants the lands described in the petition and alleged to be advancements, said deeds being dated Nov. 19, 1910, December 1, 1916, and July 14, 1922, and reciting a consideration of $ 10 and love and affection, $ 1 and love and affection, and $ 10 and love and affection, respectively, and it is admitted that the defendants named in said deeds went into possession of the lands therein described. Plaintiff also introduced evidence tending to support the values alleged in said petition with respect to the lands therein described, also testimony tending to show that Newberry Gibson in his lifetime gave $ 23,000 to defendant Bonnie Johnson.

Defendants introduced no evidence and at the close of plaintiffs' case offered a demurrer to the evidence, which was sustained, and decree was entered finding that plaintiffs were each entitled to an undivided one-sixth interest, subject to dower interest owned by defendant Bonnie Johnson, and that defendants were each entitled to an undivided one-third interest, subject to life estate owned by Bonnie Johnson, in the lands sought to be partitioned, and appointing commissioners to partition said lands.

Appellants contend that being the descendants of Gideon Gibson, who though a son of Newberry Gibson, deceased, was not named or provided for in the will, they are entitled, under the provisions of Section 525, Revised Statutes 1929, "to such proportion of...