65 W. Va. 611 | W. Va. | 1909
D. S. Squires died intestate on. the 11th day of November, 1905, seized of about 1200 acres of land, leaving a widow and six children and'one grandchild as his only heirs at law.
In April, 1906, this suit was brought in the circuit court of Braxton county for the assignment of dower, and the partition of the land among all of the heirs. Byrd C. Dunn and Otis Squires, two of the defendants, answered the original bill, and set up, by way of cross relief, the fact that Asa Squires, one of the sons, had before his father’s death, released all claim, as heir and'distributee, to his father’s estate in consideration of money advanced to him by his father, and was, therefore, not entitled to participate in the benefits of said estate.
At July rules, 1906, plaintiff filed his amended bill'alleging practically the same matter contained in said answer and cross bill. Asa Squires answered, admitting the execution of the release set up against him, but denying that it had the effect to deprive him of the right to share with the other heirs in his father’s estate, claiming that such release should be treated only as proof of an advancement to him by'his father, and that he should be allowed to bring this advancement into hotchpot and share with the other heirs. Exceptions to this answer were sustained. The depositions of Elizabeth Squires, the widow, and of others were taken; and on the 4th day of March, 1907, the cause, being regularly matured, was heard. A decree was made appointing commissioners to assign dower and partition the land among all the heirs except Asa Squires, and holding that he was not entitled to participate in either the real or personal property of which his father died seized and possessed.
Assignment of dower and partition was made pursuant to said decree, and on the 17th day of Juty, 1907, the cause was further heard upon the commissioner’s report, and it was decreed that each of the six heirs should take and hold in severalty and in fee simple the several parts assigned to them. This excluded the son Asa. From these two decrees he obtained this appeal.
Whether, or not, there is error in the decree appealed from depends upon the legal effect of the release given by Asa Squires to his father at the time the advancement was made to him. It reads as follows: “Salt Lick Bridge, W. Ya., Dec. 1st, 1890.
The supreme court of appeals of Virginia, however, has taken a different view of the law in the case of Headrick v. McDowell, 102 Va. 124, in which the point seems to have arisen for the first time in that court; and the reasons expressed in the opin
It is insisted that the fact that appellant, aftép executing the release, became a cripple for life by the loss of a leg, is a potent circumstance to show that the father did not intend to disinherit him. But we cannot see that this fact could have any weight in determining the effect to be given the writing. It was a voluntary act on the part of the son, and he has no right to complain of the apparent hardship. The execution of the writing had its possible advantages as well as disadvantages. If the father’s estate had been worth much less than it really was, so that the money received by him would have amounted to more than the share of any one of the other children as heir, or distributee, he could not have been compelled by them to refund any portion of it. He assumed the risk of losing for the present use of the money.
We find no error in the decrees and affirm them.
Affirmed.