McReynold's Ex'r v. Gentry

• Citation: 14 Mo. 495
• Parties: MCREYNOLD'S EXECUTOR v. GENTRY, ADMINISTRATOR.
• Decision Date: 31 March 1851
• Court: United States State Supreme Court of Missouri

14 Mo. 495

MCREYNOLD'S EXECUTOR

v.GENTRY, ADMINISTRATOR.

Supreme Court of Missouri.

March Term, 1851.

ERROR TO MARION CIRCUIT COURT.

In the year 1845, William Henry died intestate, leaving a widow, Mary Henry, and one child only, Adaline Gentry, who had previously intermarried with Joshua Gentry. The deceased left a large personal estate. Joshua Gentry administered thereon. Mrs. Henry, the widow elected to take absolutely a share of the personalty equal to the share of a child, as her dower, according to the 2nd section of the Dower law of 1845, Rev. Code of 1845, p. 430. After the distribution of a large portion of the estate, but before final settlement, Mrs. Henry died, leaving a will, and McReynolds, the plaintiff, executor thereof. Wm. Henry in his life-time gave to his daughter, Adaline, a negro and some personal property of the value of $569. On application for distribution of the personal estate of Wm. Henry, still remaining in the hands of the administrator, at the May term, 1850, of the Marion County Court, McReynolds, executor of Mrs. Henry's will, exhibited a petition praying that the defendants, Gentry and wife, be required to bring into hotchpot with the estate in the hands of the administrator, the value of said property ($569), so advanced to Mrs. Gentry by the intestate in his life-time. The County Court overruled and refused the prayer of the petition and thereupon the plaintiff appealed to the Circuit Court where the petition again met the same fate. The plaintiff took his bill of exceptions, and prosecutes this writ of error to reverse the judgment of the Circuit Court. The error complained of consists in the alleged misdirection of the Circuit Court.

PRATT & REDD, for Plaintiff. This case presents only the following questions; Whether a wife, who claims a child's part, in an estate, can compel the children to bring their advancements during the life of the intestate, into hotchpot. The law of dower gives to the wife a child's part of the estate, in her election. By the law of Descents, if a child comes in as heir, he or she must bring the advancements into hotchpot, otherwise excludod. The wife must take as a child, that is unadvanced of the estate, otherwise she cannot take a child's part. If a child, that has been advanced in life-time, can take an equal share, the wife will not take a child's part. As if the estate were $600 00, and two children left--one advanced during life-time $100; would not the child be compelled, by law, to bring into hotchpot as to wife and child? We hold that a wife takes the same part as a child, and, as to this case, is entitled to all a child's right. The law was made to favor the widow. And, Gentry cannot take only as against a child of Henry.DRYDEN, for Defendants. 1. The doctrine of hotchpot had its origin in the common law, and was applicable alone to estates (real) in co-parcenary. Its object was to secure what a first father would, if living, desire. An equal provision for all his daughters--the parcenees. Afterwards, by the statute of Distributions (22, 23 Car. II, ch. 10), the same doctrine, for the first time was made applicable to personal estate descended. None but the parceners could ever require the co-parcenee to bring her advancement into hotchpot. See Toller's Law of Executors, 378; 3 Bac. Abr. 77. 2. Descendants (children, &c.), only are parceners. Their title is by descent. A widow, as such, can never be a parcener; she may be a tenant in common. Her title is by purchase and not by descent. 3. Our statute leaves the application of the doctrine of hotchpot to the same class of titles, and the same class of tenants as at common law, and the English statute of Distributions, viz: to estates in co-parcenary. See section 6 of Descents and Distributions, Rev. Code of 1845, p. 422. 4. The widow is endowed of a certain portion of the estate “belonging to the husband at the time of his death.” See 2nd section of Dower law of 1845, Rev. Code. p. 430. If the plaintiff's interpretation of this law be tenable, the widow, in case the child has been advanced, will take more than the child, of the estate “““belonging to the husband at the time of his death.” She may take it all.

NAPTON, J.

The question presented by this record, is whether a widow with an only child advanced in the life-time of the husband, in selecting the share of a child under the second section of the act concerning Dower,...