62 Mo. App. 339 | Mo. Ct. App. | 1895
Lead Opinion
This appeal presents but a single question for our decision, viz: whether, where both children and grandchildren survive an intestate, such grandchildren can be admitted to their deceased father’s distributive share, unless they bring in an advancement made to him by the intestate.
The idea of requiring children who had been advanced during the lifetime of their father to bring the money or property thus received into hotchpot, when he died intestate, appears to have obtained in England from the custom of the city of London. (Thomas’ Coke, 254, *p, 319; 1 Cooley’s Blackstone, 517), and in 1671 incorporated in the statute of distributions, 29 Car. 2, chap. 3, sec. 25; 30 Car. 2, stat. 1, chap. 6; and made perpetual by 1 Jac. 2, chap. 17, see. 5. Since this statute was enacted subsequent to the fourth year of the reign of King James I., it is not to be regarded as a part of the common law in this state, and is not in force here, unless it has been adopted by statute. R. S., 6561. The custom of London, which has
The term advancement, when used in statutes of distribution, is always understood to mean money or property given to a child by the father, or anyone in loco parentis, in anticipation of inheritances. Kinney’s Law Diet, and Grloss., 27. Blackstone, upon authority of Littleton, says that “this word hotchpot is in English a pudding,” and that, “by this housewifely metaphor, our ancestors meant to inform us that the lands, both those given in frank marriage and those descending in fee simple, should be mixed and blended together and then divided in equal portions among all the daughters.” 1 Cooley’s Blackstone, 189.
Proud v. Turner, to be found in 2 Peere Williams,Reports, 560, and decided in 1729, was where a father had several, children and in his lifetime advanced in part to one of them. The child thus advanced in part died in his father’s lifetime, leaving issue; afterward the father died intestate, possessed of considerable personal estate. The Lord Chancellor held that the issue of the dead child must bring into hotchpot what their father received in part advancement, as he, if living, must have done. The issue must stand in the place and stead of the father, claiming under him, and could not be in a better condition than their father, if living, would have been, had he claimed his distributive share.
Judge Wóerner, in section 554 of his work on the American Law of Administration, states that 1‘a sound rule seems to be that in all cases where grandchildren take per stirpes, or in right, of their parents, they take subject to advancements to their parents.” This statement of the rule finds support in the following cases: Person’s Appeal, 74 Pa. St. 121; Skinner v. Wyne, 2 Jones Eq. 41; Calhoun v. Crosgrove, 33 La. Ann. 1001.
The record discloses that Henry F. Williams, the father of the plaintiffs in error, was the brother of the defendants in error; that their father, William G. Williams, made an advancement to said Henry F. Williams, and that the latter died before the former. The defendants in error, children of William G. Williams, insist that the plaintiffs in error, his grandchildren, can not come into partition with them unless they first bring into hotchpot the advancement received by their father in his lifetime. While the plaintiffs and defendants in error are all the lineal descendants of William G. Williams, they are manifestly not of equal degree of consanguinity. Under the provisions of our statute, from which we have already quoted, the former take per capita, and the latter per stirpes. . If the plaintiffs and defendants in error were all either children or grandchildren of William G. Williams, they would take per
The doctrine of advancement is founded wholly upon the statute. Turpin v. Turpin, 88 Mo. 337; Am. and Eng. Encyclopedia of Law, 220. The statute, section 4470, in express terms, requires only children of the intestate, who have received advancements, to bring the same into hotchpot, before they can share with the intestate’s other children in the distribution of his estate. It is apparent, however, upon the very face of this section, that the purpose of its enactment was to secure an equal distribution of the estates of intestates among their children. This is the dominating thought, which is expressed in language too plain to be misunderstood. To give effect to such intent, the courts have, in a great variety of cases arising under statutes of distribution, and under wills, construed the term “children” to be broad and comprehensive enough in its signification to include “grandchildren.” In 4 Kent’s Commentaries, 418, it is stated that, when the statute uses the term “children” it may stand in a collective sense for “grandchildren” when justice or reason requires it. And to the like effect are these authorities: Endlich on Interpretation of Statutes, secs. 80, 321; Wyth v. Blackman, 1 Vesey, Sr., 196; Boyle v. Hamilton, 4 Vesey, Jr., 437; Eskelman’s Appeal, 74 Pa. St. 46; Hamilton v. Lewis, 13 Mo. 184; Hersha v. Bremerman, 6 Serg. & R. (Pa.) 2; Re Patton, 41 Hun., 500.
Having in view what was the manifest intent of the legislature in the enactment of the statute, we think the term “children” therein used should be so construed
But it is strenuously insisted by the plaintiffs in error that, under the rule declared by our supreme court in Barnum v. Barnum, 119 Mo. 63, they inherit from their grandfather and not from their father, and that therefore they are entitled to receive their share in the former’s estate, in right of the latter, without reference to his advancement. It may be, and doubtless is, true, that according to the ruling in the ease just stated, the plaintiffs do inherit from their grandfather and not through their father; still, their right to inherit is representative in its character and must be measured by that of their father, if he were living. It is conceded that their father’s share, were he living, would be diminished by the advancement received by him, and why should they, who claim under him, as said by the chancellor in Proud v. Turner, “be in a better condition than their father, if living, would have been, had he claimed his distributive share.” They must stand in their father’s stead, for without this they can not be recognized as distributees of their grandfather’s estate. The advancement was an incident attaching to the father’s share, had he lived and claimed it, and no good reason is perceived why it does not as well attach to that share, when claimed by his children, as his representatives.
Under the rule declared in Barnum v. Barnum, if the father of plaintiffs in error had owed the intestate father a debt, that which would have been his share in the intestate’s estate, had he lived and claimed it, would have descended to the plaintiffs in error, as his children, not subject to his debt to the intestate. But neither this nor any other case in this state, has announced a
But the plaintiffs in error make the further objection that the trial court did not have jurisdiction of the subject-matter of the action, for the reason (amongst others) that the appeal bond was neither approved by the probate court, nor the judge thereof in vacation. According to the ruling in Green v. Castello, 35 Mo. App. 127, this objection is fatal to the judgment.
It follows that the judgment must be reversed and cause remanded, with directions to the circuit court to dismiss the appeal from the probate court.
Rehearing
ON MOTION BOB BEHEABING-.
Under the provisions of section 290, Revised Statutes, as amended by the act of 1889 (Session Acts, 1891, p. 68) neither the probate court nor the judge or clerk thereof in vacation has authority to grant an appeal until after the approval of the appeal bond. But, notwithstanding this, if an appeal be granted where no bond is filed, or, if filed, it be defective, the circuit court acquires jurisdiction. In such case the appeal on motion may be dismissed in the circuit court, unless the
There is a distinction between a case in which an appeal has been irregularly granted and one where it has not been granted at all. In the former, jurisdiction is conferred, while in the latter it is not. In the former,, the irregularity or defect in the appeal may be waived by a general appearance in the circuit court, while, in the latter, jurisdiction is not conferred nor waived by such appearance. In a case where the appeal confers-no jurisdiction, but where the causéis one of which the-court has original jurisdiction and the parties voluntarily appear in the case and' proceed to trial, the court acquires jurisdiction not by virtue of the appeal but by the voluntary appearance of the parties. But in a case-like this, where the jurisdiction of the circuit court is-exclusively appellate and not original, a general and unlimited, appearance of parties does not confer jurisdiction.
The motion is overruled.
