146 Mo. App. 642 | Mo. Ct. App. | 1910
(after stating the facts).— From the foregoing statement it will appear that the sole question involved in this case is, whether or not the entries in the “book of advancements,” of the account between the testator and his daughter Ella and her husband, W. C. Tompkins, are conclusive as to the amount of advancements with which they are chargeable, corrected by any credits accruing between its date, December, 1900, and the date of the death of the testator, which occurred February 16, 1903.
Whether money or property passing from father to children is to be held to be a gift or an advancement has been a question of much learned discussion and has been passed upon in many cases. No such question is here involved; the testator has very clearly settled that by his will, and has therein clearly specified into what class the moneys from time to time passing from him to his children are to fall. Nor are we to treat this case as one in which the assets and property are thrown
Recurring then to the main question in the case, namely, whether the statement of the amount of advancements, as made out by the testator in his book of advancements, is conclusive on these respondents, we hold that it is. In Turpin v. Turpin, supra, Judge Black (1. c. 341), after stating that the children of the testator are “all provided for in the will; one is by the will charged with the advancement, the others are not, though two were advanced before the date of the codicil,” says, “The will must control.”
In Ray v. Loper, 65 Mo. 470, Judge Henry, speaking for our Supreme Court, says: “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
In Nelson v. Nelson, 90 Mo. 460, 2 S. W. 413, Judge Black: citing Ray v. Loper, says: “Of course, the parent can, at any time, charge the child, by will, executed in accordance with the statute, with moneys as advancements.”
In Ladd v. Stephens, 147 Mo. 319, 1. c. 333-4, 48 S. W. 915, Judge Marshall cites and quotes approvingly Ray v. Loper, supra, as laying down the rule that the parent at the time he gives property to the child by way of advancement may fix upon it whatever value: he pleases, or he may do it by will; and the court holds that value so fixed conclusive on the heir.
In re Estate of St. Vrain, 1 Mo. App. 294, the court, citing the statute (now sec. 2913, R. S. 1899) as providing that a child having received any of the real or personal estate of the ancestor by way of advancement, “shall take no part of the estate descended unless they bring such advancements into hotchpot with the estate descended,” held that the probate court in making order of distribution properly took into consideration advances made to certain heirs who had received advances but did not throw them into the estate for distribution,, and committed no error in excluding such heirs from participation in the distribution. Affirmed In re Estate of Elliott, supra, and in Turpin v. Turpin, supra, and Estate of Williams, supra.
It is true that Judge Woerner, 2 Am. Law of Administration, foot page 1332, says: “So where a testator has provided that such sums as were charged to his children in his books should be deducted, it was allowed to be shown that charges so made had been repaid before the testator’s death, or were false.” The learned judge cites but two cases in support of this general declaration, namely, In re Musselman’s Estate, 5 Watts 9, and Hoak v. Hoak, 5 Watts 80. We are reluctantly compelled to say that aii examination of those
In Hoak v. Hoak, 5 Watts 80, the will of the testator provided that each of his legatees should be “charged in the distribution with what I have given them, or shall have given them, at the time of my death, and Avith Avhich I have charged them in my book and in my foregoing will and testament.” Evidence was offered tending to show that the sums charged in the book had not been actually given, paid or advanced by the testator to them but that a much smaller sum had been given them. This evidence was objected to on the ground of its being irrelevant, because the charges in the testator’s book were conclusive. The trial court sustained the objection but the Supreme Court held that the objection was well taken. Calling attention to the language of the will, the court says (l. c. 82) : “Now it is abundantly clear, from this clause, that the testator never thought of charging his children, whom he had made his legatees, with what he had never given to them, but' intended merely to charge them, severally, with that which he had given, or thereafter should actually advance and give to each. It is also manifest that he directed this to be done for the purpose of making them equal participants in his estate, by taking into the account as well what he had given them in his lifetime, as what he should leave them at his death. It must be observed that he does not direct that they shall be charged with what he had given or charged in his book,
In Schell’s Estate, a case reported 15 Pa. C. C. 372, also 3 Pa. Dist. R. 738, and arising in the Orphans’ Court of Phila. Co., a later Pennsylvania case, and it is true, not in the Supreme Court, the court lays down the proposition that in disposing of an estate, the testator is at liberty to subject his legatees to whatever terms he may in his discretion impose. .Where a testator fixed by his will certain sums set forth in his account books as the amounts due him from his sons and directed that those sums should be deducted from their respective shares of his estate, this was conclusive ■on the sons’ claim under the will; that in disposing of his estate the testator is at liberty to subject his legatees to any terms in his own discretion. He could use the entries in his books, whether they were true or fictitious, as an arbitrary measure of his sons’ share in his estate; and in the case before the court he did this when he made the accounts a part of his will. If the legatees •did not choose to accept or be bound by the terms of the will, it was open to them to contest it but claiming under the will they were bound by its provisions.
In re Aird’s Estate, also cited Aird v. Quick, 12 Ch. Div. (1879) 291, it was held that where a testator by his will gave a legacy and by a codicil,, after reciting that he had advanced to the legatee a certain sum, directed that sum to be considered as a payment on account of the legacy, it was held that the sum mentioned would be deducted from the legacy, though the advance in fact made was less than that sum. In deciding the case,
In the case of In re Kelsey, 74 L. J. (1905) Ch. Div. 701, Mr. Justice Eady, passing on the Taylor case and the Aird case, both of which were called to his attention, notes this difference, for he says: “I think that the cases dealing with the question raised resolved themselves into two classes — -namely, one where the testator by apt words .directs a legatee to bring into account a particular sum; he may recite — perhaps erroneously — that a particular sum has been advanced and direct a legatee to
The Supreme Court of Ohio in Younce v. Flory, 77 Ohio St. 71, speaking of a suit somewhat similar in character to the present proceeding and in which it was endeavored, in considering advances, to establish them without regard to the provisions of the will, says, in substance, “the effort of the respondents is for the reformation of the will because of an alleged mistake affecting the provisions in the will charging respondents with advances according to the advance book kept by the decedent. By the clear terms of the will the amount of these advances is distinctly set out as the amount to be charged to his several children on their shares in the estate and to change the amount from that designated
Redfield on the Law of Wills (2 Ed.), vol. 3, top of page 49, says: “The question of the powder of courts of equity to reform wills came under consideration in the case of Box v. Barrett, where the testator distributed his property unequally among his daughters, upon the declared ground of equalizing their portions, reciting that two of them would become entitled to settled estates, upon the testator’s decease, when, in fact, they were all equally entitled under the settlement. Lord Romilly held that no case of election arose, because the will did not profess to affect the settled estates, and, upon the question of reforming the instrument, said: ‘Because the testator has made a mistake, you cannot afterwards remodel the will, and make it that which you suppose he intended, and as he would have drawn it, if he had known the incorrectness of his supposition.’ It is no sufficient ground to refuse the probate of the will that error in matter of fact has been committed by the testator, unless it be of a character to defeat his testamentary intentions.”
In Vitt v. Clark, 66 Mo. App. 214, this court has laid down as an elementary proposition that a testator’s will speaks as of the date of his decease. If between the date of the will and the date of the decease conditions have changed, it must be presumed that these changes were in the testator’s mind when he died and in view of the fact that he made no changes in the will, the meaning of the terms used therein must be interpreted in the light of conditions existing at the later date.
The order of the probate court and the judgment of the circuit court in sustaining the objections to the final settlement <.f the executor were erroneous and this case is reversed and remanded with directions to the Honorable Circuit Court of Ralls County to enter up judgment overruling the objections to the final settlement and approving it.