88 Mo. 337 | Mo. | 1885
This a proceeding between the devisees of Jeremiah Turpin for the partition of real estate. The testator gave his property, real and personal, to his wife, who was dead at the institution of this suit, for life, then to his seven children in equal parts, charging his son Frank with an advancement of three thousand dollars, and constituting two of his sons trustees for Nancy Robertson as to her share. By the codicil, Nancy is to have certain lands in Saline county at a valuation of five thousand dollars, if her share equals that amount, and if not, then that part thereof west of the road at two thousand five hundred dollars, and the other portion is to be sold and the proceeds divided. The commissioners appraised the whole estate, putting the Saline county land at five thousand dollars, at an aggregate amount which would give to her the whole of that tract. They also reported that the other lands could not be divided in kind. Thereupon the court ordered a sale of the property, other than that in Saline county. The parties then sold the lands not situated in Saline county at private sale, .all joining in the conveyance, at a price which made the share of Nancy less than five thousand dollars. Thereupon the court ordered a sale of that part of the Saline ■county land not lying west of tbe road. From this order and before any sale or report thereof, this appeal was taken.
1. Following the opinion in Murray v. Yeates, 73 Mo. 14, and authorities there cited, the order of sale is not a
2. To avoid the delay and expense of another appeal we aré asked to consider certain other questions, which, we proceed to do. For Mrs. Robertson it is contended the valuation fixed by the commissioners' must control. While the testator valued the land to go to her, he fixed upon no method of determining the value of the other lands. He must have had in view the law as to that. He evidently contemplated an equal distribution of the property, not valued in the shape in which it became neces: sary to put it to effect a distribution, Had the property been susceptible of division in kind, the report of the commissioners when approved would have ended the matter. A sale being required in order to effect a partition, the proceeds would stand in lieu of the land, and the amount of the sale would determine the amount to go into the computation for a division, and not the value fixed by the commissioners. Instead of a public sale the parties made a private sale, as they had a right to do,, and that is conclusive upon all the parties as to the value of the land so sold and the court properly so ruled.
3. On the part of the plaintiffs it is insisted that; H: JB. and Wm. J. Turpin should each be charged with three thousand dollars by way of advancement, because of land of that value conveyed to them by the father in his lifetime: One of these deeds, as wTe understand the record, was made before the date of the will, the other thereafter, but before the date of the codicil. No charge is made against these devisees by the will or codicil, though the son Frank is thereby charged with three thousand dollars-The doctrine of bringing advancements into hotchpot apl plies only in cases of intestacy. 4 Kent Com. [13 Ed.] p. 41S; 2 Williams Ex. [Am. notes] p. 1608. And this is
The will must control. The appeal is dismissed.
