Nelson v. Wyan

• Decision Date: 31 July 1855
• Citation: 21 Mo. 347
• Parties: NELSON & OTHERS, Plaintiffs in Error, v. WYAN & OTHERS, Defendants in Error.
• Court: Missouri Supreme Court

21 Mo. 347

NELSON & OTHERS, Plaintiffs in Error,

v.WYAN & OTHERS, Defendants in Error.

Supreme Court of Missouri.

July Term, 1855.

1. A testator, in his will, devised specific land of an estimated value to each of his children, and directed that, upon final distribution, the devises should be equalized, and the balance of his estate equally divided. Held, that, in equalizing the devises, the child who received land of the greatest estimated value, was not to be charged with interest upon the excess.

2. In distributing an estate, interest is not to be charged upon advancements.

Error to Cooper Circuit Court.

Bill in chancery, filed in 1847, by a portion of the heirs of Jacob Wyan, deceased, against the other heirs and executors, for a partition of the real estate and a distribution of the personal assets belonging to the estate.

Jacob Wyan died in the spring of 1842, leaving six children, to some of whom he had made advancements during his life. In his last will, he made specific devises of land to each of his children, and to two of them a bequest of $2,000, to be taken out of the stock of a firm of which he was a member at the time of his death. The will then proceeded as follows:

“It is my wish and desire that each one of my children should receive an equal portion of my estate in a final distribution, estimating and counting the advancements to each, and also the lands and property before mentioned as devised and given to each, as I here estimate the same. I have heretofore given my daughter, Sarah J. Trigg, by way of advancement, the sum of $1000 in cash, and I value the real estate herein given and devised at the sum of $6000. I have heretofore given to my daughter, Mary J. Nelson, the sum of $2000 in money, by way of advancement, and I estimate the real estate herein given and devised to her at the sum of $5000. I have heretofore given by way of advancement to my daughter, Margaret J. Russell, the sum of $2000, and I estimate and value the real estate here given and devised to her at the sum of $4000. I have heretofore given to my daughter, Nancy S. Myers, the sum of $1000, by way of advancement, and I value and estimate the land herein willed and devised at the sum of $6000, and the stock at $2000, making in all $9,000. I estimate and value the real estate and bequests herein given and devised to my son, Wesley, at the sum of $8000. I estimate and value the real estate herein devised to my daughter, Paulina E. Wyan, at the sum of $4000.”

After making provision for his widow and authorizing his executors to sell any portion of his real estate except such as was specifically devised, the testator concluded his will as follows: “It is my will and wish that all the residue of my estate, not hereinbefore disposed of, shall be distributed among my children, (naming all of them,) so that each one, with the advancements and bequests herein mentioned, shall receive an equal portion of my estate after such distribution.”

On the 22d of July, 1842, soon after the testator's death, his executors paid to Nancy S. Wyan the $2000 bequeathed to her in money, and subsequently paid various amounts at different times to each of the children. The bill charged that “since the death of the testator” the several children had taken possession of the real estate devised to them, and this was admitted in the answer; but it did not appear whether it was productive or unproductive.

The prayer of the bill was that partition and distribution be so made that each of the children would receive an equal portion of the estate, “counting the advancements to each of the heirs and the amount each may have received since the death of the testator.”

The cause was referred to a commissioner to take an account. From the commissioner's report, it appeared that, in stating the account, he proceeded upon the assumption that the testator “intended that his children should be made equal out of the principal of his estate as he left it at his death, and that each should receive a corresponding or equal portion of the rents, profits, interest or moneys arising from the sale of real estate or otherwise that may have accrued in the hands of his executors after his death;” and accordingly, he allowed “interest on all sums due those legatees who had received smaller bequests and advancements until they have received an amount equal to the legatee who received the largest bequest and advancement.” As Nancy S. Wyan received the $2000 bequeathed to her on the 22d of July, 1842, the commissioner adopted that as the date of the commencement of the account, and assuming that she then received $9000, including the advancement, bequest, and estimated value of the real estate devised, allowed interest from that date on the sums necessary to make the other children equal, until they received them. The report showed a balance in the hands of the executors to be distributed. From the evidence before the commissioner, it would seem that it was agreed by all the parties that interest should be allowed upon the cash payments made by the executors.

Exceptions were taken to the report and sustained, and the Circuit Court decreed that advancements, specific devises and bequests be “equalized out of the real estate, without any interest, and that the balance of the estate on hand be equally divided among the legatees.” The complainants and one of the defendants, against whom this ruling operated, brought the case to this court by writ of error.

Washington Adams, for plaintiffs in error.

1. The report of the commissioner shows that there were ample moneys in the hands of the executors to equalize the legatees, and they should have been equalized in money. 2. The equality ought to be produced out of the principal, and as the incident (the interest) should follow the principal, each devisee ought to be allowed a portion of the interest, ratably with the amount required to equalize his share. ( White's heirs v. White's Adm'r, 3 Dana, 377.)

P. R. Hoyden, for defendant in error. There was no error in refusing to allow interest. The testator had a right to devise his property as he pleased, and to give to some the enjoyment of their shares earlier than to others. The will looks to a future period for the “final distribution,” and the intention of the testator manifestly was, that when that period arrived, the advancements, specific devises and...