82 W. Va. 24 | W. Va. | 1918
Robert Neil died in the year 1888 leaving surviving him Alexander Middleton Neil, Nathan W. Neil, William Henry Harrison -Neil and Robert Grimes Neil, children by his first wife, and Joseph F. Van Pelt Neil, Julia C. Simms and Margaret J. Shelton, children by his second wife. At the time of his death he was the owner of a tract of land in Nicholas county containing about five hundred acres, the same being a part of a larger tract of about nine hundred acres devised to him by his father. Shortly after his death the three children by his last wife entered into an agreement to divide the land among themselves, pursuant to which it was divided by commissioners, and a part laid off to each of said three children. Subsequently, and after the death of Joseph F. VanPelt Neil, it Avas discovered that an error had been made in partitioning the land among the three children, and to corrert this a suit in equity was instituted for the purpose of having a repartition of the land, such a suit being rendered necessary because of the fact that ,,the heirs of Joseph F. VanPelt Neil were infants and could not make and sign an agreement as to the partition. This suit resulted in a division of the land in April, 1897', by commissioners appointed by the court. After the death of his father Robert Neil, to-wit, in the year 1896, Alexander Middleton Neil departed this life leaving surviving him a widow and six children. In the year 1914 the widow and all the children of Alexander Middleton Neil united in a deed conveying all of their interest in the estate of the said Robert Neil to the plaintiff Robert L. Neil, and this suit was thereupon instituted for the purpose of having partition of the tract of land, the title to which was in Robert Neil at the time of his death in 1888. Neither Alexander Middleton Neil nor his children were parties to the partition suit in which this land was divided among the three children of the second
Sometime prior to the beginning of the Civil War Alexander Middleton Neil, being the eldest child of his father Robert Neil, was married in Nicholas county. About the same time his brother Nathan W. Neil was also married. At that time it is shown that their father Robert Neil laid off to each of them a parcel of land from the boundary then owned by him. These tracts of land were contiguous to each other, and contained in the aggregate about one hundred and fifty acres. It does not appear how many acres were in each of the tracts. Upon the respective tracts laid off to them each of the sons constructed a house and moved into the same with his family. In the year 1862 the older son moved to the west and lived there until the time of his death in the fall of 1896. However, in the year 1866 he returned to his old home in Nicholas county apparently for the purpose of disposing of the land which had been given to him by his father, but for which he had never received a conveyance. While in Nicholas county he sold this land to his brother Nathan W. Neil for the sum of four hundred dollars, and at that time his father conveyed to' Nathan W. Neil by one deed a boundary of land which included what had theretofore been assigned by him to both of the sons. Part of the money with which this land was purchased by Nathan W. Neil from his older brother was loaned to him by his father, and the residue, it appears, was subsequently paid when the wife of Alexander Middleton Neil was iii Nicholas county on a visit. It is not recited in the deed from Robert Neil that the land conveyed thereby to Nathan W. Neil is to be taken as an advancement made to the two sons, Alexander Middleton Neil and Nathan W. Neil, nor does the deed show on its face that any of the land therein conveyed was the part assigned to Alexander Middleton Neil. This fact, however, conclusively appears from the evidence. Subsequently Robert Neil conveyed another tract off his holdings -to his son Robert Grimes Neil which contained about forty-five-acres/but'upon which there was a mill, and-still
The only question remaining' for consideration is, was it intended to be a bar to his further participation in the estate of his father, or was it simply intended that he should account for the same in the subsequent distribution of his father’s estate? There is no writing between the parties expressing their intent in this regard, and we must draw our conclusions as to what their intentions were from the declarations of the donor, his course of conduct in the division of his estate amongst his children, the actions of the parties in regard to the land, and all the other circumstances accompanying the transaction, and attending the subsequent relations of the parties to each other. Here we find it clearly shown that Robert Neil had adopted a general policy toward his children of dividing his estate among them prior to his death, and this, it may be said, is a circumstance to be considered in determining the effect to be given to the advancement made. Brook v. Latimer, (Kan.) 11 L. R. A. 805. We find that to each of his children by his first wife he had made advancements in land, and we find that he had advised his three younger children, his descendants by his second wife, that if they would agree upon the division of the remaining land he would convey it to them.. This policy of distributing his estate before his death is, we think, a strong circumstance indicative of the effect intended by Robert Neil to be given to the advancement made to Alexander Middleton Neil. It is argued that the amounts received by some of the older children were not as adequate provision as was made for the younger children by the partition made by them. This does not appear to be the ease. While the younger children received larger allotments of land, it does not appear whether or not they are more valuable, or less valuable, than those parcels assigned to the older children; but assuming such to be the case it may well be said that a prospective heir would be willing to take a very much less sum thirty years before the death of his ancestor than might be his due if he waited for such event. Not only would he have the use of the property during all of that time, but he would avoid the chance that his father before his
What we have said in regard to the claim of the heirs of Alexander Middleton Neil applies with full force to the claim
The decree of the circuit court complained of is therefore affirmed.
Affirmed.