44 Mo. App. 4 | Mo. Ct. App. | 1891
George W. Manning died intestate, and letters of administration on his estate were granted to the defendant, who made her final settlement in November, 1889. It appeared by such settlement that there was in the hands of the administrator the sum of $1,582.69 for distribution, and the probate court ordered an equal distribution thereof between the
“When any of the children of the intestate shall have received, in his lifetime, any real or personal estate, by way of advancement, shall choose to come into partition with the other parceners, such advancement shall be brought into hotchpot with the estate descended.”
The circuit court then made an equal distribution of the entire estate of the decedent between the children and the widow, taking into consideration the advances made to each child. Prom this order the plaintiff Rebecca appealed, and she now claims that the court erred, under the conceded facts of the case, in charging her with the sum of $800 as an advancement, when in fact such amount could not be treated as an advancement to her, because it was given by the decedent to her children, and not to her. Whether this contention is correct, is the only question presented by this appeal.
The point arises on the following part of the agreed facts and uncontroverted evidence : ‘ ‘ The deceased sold and conveyed to J. P. Manning a certain parcel of land, and, in payment for same, caused him to execute and deliver five notes for $200 each, payable one to Rebecca J. Alleman, and one payable to each of her four children ; the notes made to the children were delivered to
It further appeared in evidence that the decedent gave to each of his other daughters by way of advancement $1,700 and gave to the plaintiff Rebecca in person $900, of which $200 were given to her at the same time when he gave the $800 in notes to her children, so that, taking this $800 as an advance, the advances to her were equal in amount to those made to each of his other daughters.
The following declarations of law requested by the plaintiff were refused.
“2. That, although it may be found that -the intestate gave $800 in notes to the children of the appellant, Mrs. Alleman, and intended that the same should be charged against her as an advancement; still, in the absence of her assent thereto, the same cannot be charged to her on her distributive share.”'
“4. That a gift by the intestate to a grandchild or grandchildren, in the life of its or their parent, cannot
The section of the statute above set out, which governs this proceeding, has been repeatedly construed by the supreme court and by this court. Ray v. Loper, 65 Mo. 470 ; Nelson v. Nelson, 90 Mo. 460 ; In re Elliott, 98 Mo. 379 ; In re St. Vrain, 1 Mo. App. 294. The statute has never received a literal interpretation. Although it speaks only of children who shall choose to come into partition with other parceners, it was always held that the probate court in making its order of final distribution between the children of the intestate, has full power to charge against their share advances made to them .respectively, regardless of the fact whether such advances were made in land, personal property or money. If any doubt ever existed on that question it was finally set at rest by the decision of the supreme court in In re Elliott, supra.
“We have in this state no statute,” says Judge Black in Nelson v. Nelson, supra, ‘ ‘ which determines by what evidence an advancement made to a child shall be proved, as seems to be the case in some of the states, and hence the proof may be made by cotemporaneous memoranda, charges in the form of accounts, or by parol evidence.” We may add to this that we'have no statute defining advances, as they have in many other states. Our statutes recognize no right of inheritance on part of the child, as against the will of the parent, but the parent’s estate is subject to the absolute disposition of the parent; hence it logically results that the question is not, whether the child was willing to receive any specific amount which the parent gave to it, or paid for it, or on its behalf as an advancement, but whether the parent so intended it to be. In Ray v. Loper, supra, Judge Henry, in giving effect to this idea, states that, “when the parent gives property to the child, he may at the time fix upon it what value he pleases as an advancement, or he may do so in his will.”
The question then arises, is there any positive rule of law which prevents us in this case from giving effect to the decedent’s intention to make an equal distribution of a certain part of his estate among his children ? That such was his intention is quite clear from the facts agreed upon and given in evidence. It is suggested that we cannot treat that as an advancement, which the law does not recognize as such, as it is well settled that a parent cannot by a mere entry, without giving anything to the child, subject it to a charge for advances, nor can he do so by conveying property to a stranger, however manifest his intention may be to treat such conveyance as an advance made on behalf of the child. The money or property conveyed must be a conveyance for the supposed benefit of the child. Hence it has been held that money or property given to grandchildren in the lifetime of their parent are prima facie gifts, and should not be regarded as advancements either to the grandchildren or their parents (Stevenson v. Martin, 11 Bush. 485 ; Shiver v. Brock, 2 Jones N. C. Eq. 137) ; while, on the other hand, it is equally well recognized that advances made on the child’s behalf need not be made to the child directly. Bridgers v. Hutchins, 11 Ired. L. 68, and that even, under a statute which requires an acceptance by the child, a formal acceptance is unnecessary. Holliday v. Wingfield’s Adm’r, 59 Ga. 206.
Under these circumstances, we think the court was justified in finding that the plaintiff acquiesced in the transfer of this property to her children as an advance made on account of her distributive share, and that the evidence adduced by her that she “ never so assented ” had reference to a formal assent only. As there is only a synopsis of the evidence before us, and as we are bound to construe it so as to support the judgment, when it reasonably admits of that construction, we must so construe that part of plaintiff’s evidence.
The judgment is affirmed.