Gibson v. Johnson, 30127.

Decision Date31 December 1932
Docket NumberNo. 30127.,30127.
PartiesMARY 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.
CourtMissouri Supreme Court
56 S.W.2d 783
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.
No. 30127.
Supreme Court of Missouri, in Banc.
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.

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'...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT