In re Lear's Estate

• Decision Date: 18 January 1910
• Citation: 124 S.W. 592,146 Mo. App. 642
• Parties: In re LEAR'S ESTATE. TOMPKINS et al. v. LEAR.
• Court: Missouri Court of Appeals

124 S.W. 592

146 Mo. App. 642

In re LEAR'S ESTATE TOMPKINS et al. v. LEAR.

St. Louis Court of Appeals. Missouri.

January 18, 1910.

1. DESCENT AND DISTRIBUTION (§ 109) — "ADVANCEMENTS."

Under Rev. St. 1899, §§ 2913, 2914 (Ann. St. 1906, pp. 1675, 1676), providing that when any of the children of an intestate shall have received in his lifetime any property by way of advancement shall choose to come into partition, such advancement shall be brought into hotchpot, etc., the doctrine of bringing "advancements," which are money or property, given to a child by the father, or any one in loco parentis,

in anticipation of inheritance, into hotchpot applies only in cases of intestacy.

2. WILLS (§ 761)—CONSTRUCTION—ADVANCEMENTS.

Where testator declared in his will that he had prepared a statement of accounts with each of his children up to a designated date, contained in a book marked "Book of Charges and Advancements," and that such advancements should be considered in distributing the estate, as he intended to divide his estate equally among his children, the statement of the amount of the advancements as shown in the book was conclusive on the children, and evidence of mistakes in the amounts as set forth therein was inadmissible, in the absence of evidence of payments of later dates than the dates in the book.

Appeal from Circuit Court, Rails County; David H. Eby, Judge.

In the matter of the final settlement of the estate of James W. Lear, deceased. Ella G. Tompkins and another filed objections to the settlement of George E. Lear, executor. From a judgment sustaining exceptions, the executor appeals. Reversed and remanded.

One James W. Lear died February 16, 1903, leaving a will, which it seems was executed or dated June 1, 1901, and duly admitted to probate by the probate court of Rails county, Mo., May 19, 1903. The first item provides for payment of debts. The second item reads: "Second: Intending to divide my estate equally and justly among my five children, to-wit: George E. Lear, Bettie Lear, Mary E. Maddox, wife of Shelvy Maddox, Ella G. Tompkins, wife of Weeden C. Tompkins, and Annie S. Strode, wife of George C. Strode, I have prepared a full statement of accounts with each and all of them up to December, 1900, intending the interest at five per cent. per annum (to which rate I voluntarily reduced the interest on Jan. 1, 1895) with all proper credits, if any, shall be continued up to my death. Said account is stated in a book with a leather back marked as follows: `James W. Lear's Book of Charges and Advancements to his several children to be considered with my last will dated June 1, 1901. [Signed] James W. Lear.' No interest is intended to be charged on the sums of $300 respectively given to Mary E. Maddox, Ella G. Tompkins and Annie S. Strode, but only the principal sum was or is intended to be charged. But neither my son, George E. Lear, nor my daughter Bettie Lear, * * * has received anything. And in each and every case wherein I have advanced for or loaned to or in any wise become bound to pay any money for any one of the respective husbands, to-wit: Shelvy Maddox, W. C. Tompkins or George C. Strode of my said daughters, Mary E., Ella G. or Annie S., all was done because they were such husbands, and to aid them mutually for their benefit of themselves and their respective families for the time being, so that any and all such advancements, loans or securities remaining unpaid or unsettled at my death were intended to be and must be charged as furnished or supplied for the aid and benefit for the wife of the husband so owing any such amount with interest as shown in said stated account in my said book, and on final settlement of my estate they shall be charged with and shall respectively refund to my estate all amounts necessary to make each of my said five children equal in the final distribution of estate." The third item gives to George E. Lear and Bettie Lear $300 each to correspond with similar sums given to the three married daughters on their respective marriages, and $500 each to George and Bettie for special services rendered by them which is not to be charged against them in the division. The fourth item reads as follows: "Item Fourth: To enable Weeden C. Tompkins to buy the Henry H. Bowles farm, on which he now lives, I advanced and paid for him twenty-seven hundred dollars, one-half of the purchase money, and took from him a deed, dated March 1, 1886 (not recorded), for one-half share and interest of said farm, but afterwards on January 2, 1898, said Tompkins and I entered into a contract in writing (in duplicate) in the nature of a lease and conditional sale, which I direct and wish to be executed in good faith according to its terms, except only, that from and since January 1, 1895, I voluntarily reduced the interest to five per cent. per annum, as will appear by the stated account in my Book of Advancements at page four and following." The fifth item appointed George E. Lear executor, giving him power to make necessary deeds and conveyances. The sixth and seventh items are not set out, and it is said in the appellant's abstract that they are not necessary to the understanding of the case. The eighth item is as follows: "Item Eight: Subject to and in accordance with the foregoing seven provisions I wish all the rest, residue and remainder of my estate of whatever kinds or nature to be so divided among my five children already named in the second clause or provisions hereof, so that they shall be provided for and made equal, earnestly desiring and requesting that all may be done and all matters be settled in a mutual and kind spirit and feeling, of course none are expected to refund more than enough to make all the others equal, which I feel assured will be done cheerfully." (The italics are not in the will.)

The "book of advancements" referred to in the will (and as to its identity there is no controversy whatever), which is copied in full, on page 4 has this heading: "Ella G., and W. C. Tompkins, her husband in apc. to James W. Lear, for advancements, subject to the terms and conditions of my last will dated ____ 1901. All prior matters are settled and omitted except only $300, cash advanced and paid to them when they were married." Then follows a statement of items showing the balance advanced to Ella G. and W. C. Tompkins down to December 31st, amounting to $4,620.56. Following this is an entry of date September 27, 1902, crediting by check of $56, so that, according to this book of advancements, the total advances, after proper credits have been allowed thereon, made respondents Tompkins and wife were $4,570.56. The book also showed advances to Mrs. Maddox and her husband to the amount of $3,025.63, to Mrs. Strode and her husband $2,167.95.

The executor duly qualified, and after making first annual settlement submitted his final settlement. In his first annual settlement made November 12, 1904, he charged himself with $5,934.22, which was made up of the amount of property turned over as per inventory, $3,098.22 and $2,836 received of W. C. Tompkins, he taking credit for payments amounting to $2,023.65, which included payments of the legacies to George and Bettie, $800 each, leaving a balance on hand at that settlement of $3,910.77. In August, 1906, he presented his final settlement to the probate court, in which he charged himself with the balance of the first settlement $3,910.77, and with $598.06, the amount received from Maddox and wife, a total of $4,508.83. He asked credit for $372.57 for probate costs and his own commission, the latter amounting to $326.61, and asked credit for $691.96 paid Ella and W. C. Tompkins, $295.04 paid Annie Strode, $1,574.65 paid Bettie Lear, and a like amount paid George Lear, making total disbursements of $4,508.87, four cents over the amount with which he charged himself. In brief the executor collected the assets, and made final settlement and paid out the money of the estate, on the theory that the book of advancements was conclusive, under the language of the will, as to the amounts of advances and credits thereon. Respondents here, Weeden C. Tompkins and wife, filed their objections to this settlement in the probate court, which, in substance, are founded on the claim that the amount appearing in the book of charges and advancements as standing against them is not correct, and is open to attack by them, and that they are entitled to show the real amount of charges and advancements which should be allowed against them, they claiming that they had discharged all of the loans and indebtedness and advancements, except about the sum of $2,836, which sum they aver they had paid the executor, and which amount it was claimed paid off, settled, and discharged all the indebtedness of W. C. Tompkins to the testator.

The probate court found in favor of the objectors in the amount of $603. The executor duly prosecuted his appeal from this to the circuit court, where upon trial before a referee $1,250.33 was allowed in favor of the objectors. On exceptions to this made by the executor the circuit court sustained the exceptions as to $291.33 of the amount allowed by the referee, and allowed respondents $968.89. The referee had allowed respondent Tompkins to testify as to certain payments, loss of checks, etc., and to covering the alleged payments. On exceptions to this in the circuit court the exception was sustained, and the court ordered that the final settlement of executor be modified accordingly, and that an order of distribution be made in conformity with this finding. From this the executor has duly perfected an appeal to this court.

Reuben F. Roy, for appellant. James O. Allison and David Wallace, for respondents.

REYNOLDS, P. J. (after stating the facts as above).

From the forgoing statement it will appear that the sole question involved in this case is whether or not the entries in the "book of advancements" of the account between...