Ray v. Loper

• Decision Date: 31 October 1877
• Parties: RAY v. LOPER, APPELLANT.
• Court: Missouri Supreme Court

65 Mo. 470

RAY

v.LOPER, APPELLANT.

Supreme Court of Missouri.

October Term, 1877.

Appeal from Bates Circuit Court--Hon. FOSTER P. WRIGHT, Judge.Galloway & Johnson for appellant.

1st. No interest can be charged upon money given to a child by way of advancement, and if land advanced to a child be brought into hotchpot, it must be brought in at its value at the time the advancement was made, and this inflexible rule must be applied, although the land had increased to twenty times its original value. Grattan v. Grattan, 18 Ill. 167; Osgood v. Breed's heirs, 17 Mass. 356; Hall v. Davis, 3 Pick. 450.

2nd. The evidence shows that the two hundred acres claimed to have been entered and bought by Daniel Ray for W. W. Ray was entered in the name of W. W. Ray, and the patent issued in his name. To contradict this, no competent evidence was introduced by plaintiff; indeed, the patent was conclusive on that point. Story's Eq. vol. 2, sec. 1,201 and notes; Greenleaf's Ev. vol. 1, p. 266; Ringo v. Richardson, 53 Mo. 385.

C. C. Bassett for respondent.

1st. The rule is that advancements of real estate shall be valued as at the death of the ancestor when it is brought into hotchpot. Taylor v. Reese, 4 Ala. 121; Robertson v. Dunn, 2 Murphy 133; Thomas v. Gage, 1 Harper's Ch. 197; Kean v. Welch, 1 Gratt. 403; Powell v. Powell, 9 Dana 12.

2nd. An advancement of money or property to a child is prima facie an advancement, though it may be shown that it was a gift and not an advancement. Kent's Com. 11th ed. p. 461; Distributees of Mitchell v. Mitchell, 8 Ala. 414; Brown v. Burke, 22 Ga. 574; Stanley v. Brannon, 6 Blackford 193; Tremper v. Barton, 18 Ohio 418-423.

3rd. The acts and declarations of the parent, either concurrent or subsequent, may be shown as evidence as well of his original intention as of his final purpose. Johnson v. Belden, 20 Conn. 322; Clark v. Warner, 6 Conn. 355; Middleton v. Middleton, 31 Iowa 151; West v. Bolton, 23 Ga. 531.

1. PARENT AND CHILD; advancement: hotchpot.

HENRY, J.

A voluntary conveyance of land by a parent to a child is prima facie an advancement, and if the party to whom the advancement was made comes in for a distributive share of the estate of the parent, such advancement shall be brought into hotchpot with the estate descended. Bringing into hotchpot, under our statute, does not mean that the property or money advanced shall, in kind or specie, be thrown in with the property which has descended, but that it is to be estimated and charged against the party according to its value at the time the advancement was made. Nelson v. Wyan, 21 Mo. 352; Grattan v. Grattan, 18 Ill. 167; Oyster v. Oyster, 1 S. & R. 422. The case of Kean v. Welch, 1 Grattan, cited by respondent, does not militate against this doctrine. The court in that case based its decision upon the provision of the testator's will, which treated the shares advanced by him to his children as still his own, and required them, as well as those of which he was in possession and owner at his death, to be equally divided betwixt his children.

The evidence in this case shows that, in 1853, William Ray entered in his own name, two hundred acres of land adjoining the lands entered by his father, and received a patent for it from the government in 1854. On the trial in the court below, the evidence to show, that the two hundred acres of land, above referred to, were given to William Ray by his father, consisted of declarations made by Daniel Ray, testified to by the plaintiff, James Ray, and by Scribner, Ellidge and Goodwin. James Ray testified that his father “told William he could have the land he bought for him to live on, and that the other children would get the same, and that he was to account for the land given him in the same proportion as the other land when divided.” This evidence was admissible for what it was worth, but the other witnesses were permitted to testify: the one that Daniel Ray told him he had given William one hundred and sixty acres of land; another, that he told him that William had his share of the land; and another, that he heard Daniel Ray say that he intended the land he owned, for James, the plaintiff, and this, we think, was wholly inadmissible.

2. ADVANCEMENT; evidence.

One question in the case was whether Daniel Ray had given William two hundred acres of land; and the evidence furnished by the entries in the records of the land office, and the patent from the government to William Ray, was to be overcome. This tended strongly to show that William had purchased the lands with his own means. While any declarations made by Daniel Ray to William, and by him not contradicted, to the effect that he had given the lands to William, or furnished him the money to buy them, are admissible against him or his heirs, there is no principle of law which would admit, as evidence to establish that fact, the declarations of Daniel Ray to third persons. There is nothing in the nature of this case that exempts it from the application of the general rule. Daniel Ray could, by will, have disposed of his property as he saw proper, but he could not disinherit one of his children by the “loose,...