Waldron v. Taylor

• Decision Date: 13 December 1902
• Citation: 45 S.E. 336,52 W.Va. 284
• Parties: WALDRON et al. v. TAYLOR et al.
• Court: West Virginia Supreme Court

45 S.E. 336

52 W.Va. 284

WALDRON et al. v. TAYLOR et al.

Supreme Court of Appeals of West Virginia.

December 13, 1902

Submitted January 1, 1902.

Syllabus by the Court.

1. The word "descendant," as used in section 13, c. 78, Code 1899, means one who proceeds from the body of another however remotely, and is coextensive with "issue," but does not embrace others not of issue.

2. Where the words of the statute are not ambiguous, but have a clear and definite meaning, it is not within the province of the courts to go further by extending its provisions so as to include persons who are clearly excluded by the statute itself.

3. The true notion of advancement is giving by anticipation the whole or a part of what it is supposed a child will be entitled to on the death of the parent making it and dying intestate.

4. The doctrine of hotchpot is designed by the statute to benefit descendants only. Advancements are not to be brought into distribution or partition in respect to any other persons.

Error to Circuit Court, Mingo County.

Action by M. H. and Hester A. Waldron against W. G. Taylor and others. Judgment for defendants, and Hester A. Waldron brings error. Reversed.

Brannon J., dissenting.

Sheppard & Goodykoontz and R. H. Hoyle, for appellant.

J. B Wilkinson and J. S. Miller, for appellees.

MCWHORTER J.

On the 7th day of July, 1887, James Starr granted and conveyed to John Starr, his brother, in consideration of the love he had for him, a certain tract or parcel of land on Pigeon creek, in the county of Logan, containing 300 acres, more or less, "to have and to hold the same of his natural lifetime; then to Alex. Shelby Starr, Sarah A. Starr, and Rosa M. Starr, heirs of John Starr, to have and to hold forever, with all its appurtenances, except the rent for the year 1887," and providing "that the parties of the second part is not to sell or expose of said land for six years." Said James Starr died in the year 1887, intestate, without issue, seised of valuable real estate situate in Logan county, since Mingo county. He left surviving him two brothers, John and Samuel, and three sisters--Ruth, who married Evans Ellis; Sally, who married Alexander Runyon; and Martha, who married Andrew Dempsey; and that such of them as survived him, and the descendants of them who died prior to his decease, were the next of kin to said James Starr. John Starr and Ruth Ellis survived said James Starr, while Samuel and the other two sisters died prior to his death, all leaving children surviving them. Before his death John conveyed to his son, William, all his interest in said estate of his brother, James Starr, deceased; and William, by deed of the 23d of August, 1897, together with Jenia, his wife, conveyed said interest in consideration of 136 acres of land exchanged therefor to Hester A. Waldron. Said Hester A. Waldron also acquired by purchase and conveyance the interest of Levi Starr and of the children of Samuel Starr, the brother of James, in said estate of James Starr. G. W. Taylor also acquired by purchase and conveyance various interests of the heirs at law of said estate. M. H. Waldron likewise so acquired an interest therein. M. H. Waldron instituted his suit in the circuit court of Mingo county for the purpose of settling the estate in full and dividing the lands among the parties entitled thereto, or the proceeds of the sale thereof. The cause was referred to a commissioner to ascertain and report, among other things, of what lands James Starr died seised and possessed, and the amount and location and value thereof; whether the same were susceptible of division in kind; and who were the present owners of the same, and who were entitled to participate in the partition thereof, and to what extent. The commissioner made his report, to which the defendant G. W. Taylor and Hester A. Waldron each filed several exceptions. Among other exceptions filed by said Taylor--and the only one which it is necessary to be noticed here--is the following: "Because said commissioner erred in finding that the said Hester A. Waldron was entitled to 167/700 of said real estate, when she should have been allowed 27/700 thereof, unless she elects to bring into hotchpot the fee-simple value of the advancement made to John Starr by James Starr, Sr., in his lifetime, with the accrued interest thereon; and, if she so elects to bring the same into hotchpot, then she is entitled to 167/700 thereof"--which exception was sustained by the court. And the exceptions indorsed by the said Hester A. Waldron are as follows: "(1) It is not affirmatively shown that the tract of land alleged to have been given to John Starr was in fact given to him. (2) That said John Starr, being a collateral, and not a lineal, descendant, is not required to account for any advancement received by him from said James Starr, deceased. (3) That the evidence does not justify said commissioner in the finding the estate advanced (if the court should consider the said estate an advancement) at the sum fixed by him, or anything like so great an amount. (4) For other errors apparent upon the face of the record and report, and therefore prays judgment of the court whether she shall be required to account for said so-called advancement, or any part thereof"--which exceptions were overruled. On the 15th of September, 1900, the cause was heard, when it was decreed, among other things, as follows: "And it further appearing to the court that the said John Starr was entitled to one-fifth of said real estate, but had received in the lifetime of his brother, James Starr, by way of advancement, a conveyance of three hundred acres of land for life, remainder to three of his children in the deed of conveyance mentioned, and that the fee-simple value of said advancement was worth two thousand dollars, and that said John Starr in his lifetime conveyed to the said Hester A. Waldron his entire undivided interest in the real estate of which James Starr died seised and possessed; but the court is of opinion that before the said Hester A. Waldron shall be allowed to come in and participate in the partition of said real estate on account of the conveyance to her of the said John Starr interest in said real estate, she should be required to bring into hotchpot with the whole of the real estate descended in the bills and proceeding mentioned the fee-simple value of the said three hundred acres of land advanced to the said John Starr and his three children aforesaid, to wit, the sum of two thousand dollars, with interest thereon from August 7, 1887, the date of the death of the said James Starr; and, the said Hester A. Waldron declining and refusing to bring into hotchpot with other real estate descended the said sum, with its accrued interest, it is therefore adjudged, ordered, and decreed that she be not allowed to take or receive anything further out of the real estate so descended, under and by virtue of the conveyance to her of the said John Starr interest therein"--from which decree the said Hester A. Waldron appealed, assigning the following errors: "(1) The court erred in sustaining the exceptions of the defendant Taylor to the report of Commissioner Hatfield, and requiring your petitioner to bring into hotchpot the value of the fee-simple estate, and not the life estate, and in not assigning in said partition the one-fifth interest derived from John Starr. (2) The court erred in overruling the exceptions of your petitioner to said report of Commissioner Hatfield, and requiring your petitioner to bring the value of the estate given by John Starr into hotchpot, as the same was a gift, and not an 'advancement,' as the statute only required advancements made to 'descendants' to be brought into hotchpot, and the said John Starr, being a brother, could not be a descendant of said decedent, James Starr. (3) The court erred in directing J. S. Miller, as special commissioner, to distribute the proceeds of the sale of the land and the balance of six hundred and forty-nine dollars and seventy-three cents on account of certain timber cut from said lands, as indicated in said decree, to the extent of the said one-fifth interest claimed by petitioner. (4) For other errors apparent," etc.

The question involved here is whether the conveyance by James Starr to his brother, John Starr, under our statute (section 13, c. 78, Code 1899) can be treated as an advancement to a descendant, and the value of which shall be brought into hotchpot by the holder before he can be allowed to participate in the distribution of the estate of which the decedent died possessed as a coparcener or distributee. What was the intention of the lawmakers in the enactment of section 13, c. 78? The section reads as follows: "Where any descendant of a person dying intestate as to his estate or any part thereof, shall have received from such intestate in his lifetime, or under his will any estate real or personal, by way of advancement, and he or any descendant of his, shall come into the partition and distribution of the estate with the other parceners and distributees, such advancement shall be brought into hotchpot with the whole estate, real and personal, descended or distributable, and thereupon such party shall be entitled to his proportion of the estate, real and personal. Appellees claim that the word "descendant" in said section is given a broader meaning by the statute than it had under the common law or than ordinarily attaches to it. And, in order that it may have the meaning which appellees would give it, they termed them "statutory descendants"; and to show the purpose of the Legislature in giving it such meaning in their brief they give us the legislation on it from the time of its incorporation into the Code of 1819 down...