155 Mo. 144 | Mo. | 1900
MARSHALL, J.
In December, 1892, Daniel L. Duffy died intestate, seized of the lands described in the petition, situate in Montgomery county, and leaving as 'his heirs the plaintiff and the defendants, other than the administrator named. The plaintiff was indebted to ‘his father at the time of his death in the sum of $1,010.10, and thereafter the administrator reduced this claim to judgment. ' The plaintiff was and is insolvent. The plaintiff instituted this action asking a partition of the real estate, alleged that it was not susceptible of partition in kind and asked
The principles of law involved in this case have very recently been settled in this court in the case of In re Estate of Lietman, 149 Mo. 112. True in that case the debt due the estate was deducted from a specific legacy, while here
Section 4906, Revised Statutes 1889, applies only to property owned by the .head of a family, as against the '■claim of third persons, and manifestly and for tbe reasons given in Lietman’s case can not be invoked by an heir to exempt his interest in real estate as against a debt he owes the estate. An heir’s interest in an estate consists of his distributive or inherited share of the estate less what he owes the estate; or, in other words, what he owes the estate is to be treated as so much of his interest in the estate* already received by him, and therefore in the distribution of the property, whether real or personal, he is entitled only to so much thereof as plus what he has already received will make his share equal to the share of the other heirs or distributees. Otherwise the heir would receive as much more than the other heirs received as the debt he owed the estate amounted to. It could not be tolerated that he should be allowed to thus diminish the shares of the other heirs who had received nothing from the estate.
Of course such a judgment can not stand. It is therefore reversed and the cause remanded to the circuit court with directions to enter a final decree in accordance with the interlocutory decree 'as originally entered directing the sheriff to pay the plaintiff’s share to the administrator to be applied by him pro tanto upon the judgment in favor of the estate and against the plaintiff.