52 W. Va. 284 | W. Va. | 1902
Lead Opinion
On the 7th day of Juíy, 1887, James Starr granted and conveyed to John Starr, his brother, in consideration of the love he had for him, a certain tract or parcel of land on Pigeon Creek, in the county of Logan, containing three hundred acres, more or less; “To have and to hold the same of his natural lifetime then to Alex. Shelby Starr, Sarah A. Starr and Rosa M. Starr, heirs of John Starr, to have and to hold forever with all its appurtenances, except the rent for the year 1887,” and providing, “That the parties of the second part is not to sell or expose of said land for six years.” Said James Starr died in the year 1887, intestate, without issue, seized of valuable rea} estate situate in Logan County, since Mingo County. He left surviving him two brothers, John and Samuel, and three sisters, Ruth, who married Evans Ellis, Sally, who married Alexander Runyon and Martha, who married Andrew Dempsey, and that such of them as survived him and the descendents of them who died prior to his decease were the next of kin to said James Starr. John Starr and Ruth Ellis survived said James Starr while Samuel, and the other two sisters died prior to his death, all leaving children surviving them. Before his death John conveyed to his son, William, all his interest in said estate of
“1st. The court erred in sustaining the exceptions of the defendant Taylor to the report of Commissioner Hatfield and requiring your petitioner to bring into hotchpot the value of the fee simple estate and not the life estate, and in not assigning in said partition the one-fifth interest derived from John Starr.
2d. The court erred in overruling the exceptions of your*288 petitioner to raid report of Commissioner Hatfield, and requiring your petitioner to bring the value of the estate given by John Starr into hotchpot, as the same was a gift and not ‘an advancement/ as the statute only required advancements made to ‘descendants’ to be brought into hotchpot, and the said John Starr being a brother, could not be á descendant of said decedent, James Starr.
3d. The court erred in directing J. S. Miller, as special commissioner, to distribute the proceeds of the sale of the land and the balance of six hundred and forty-nine dollars and seventy-three cents, on account of certain timber cut from said lands, as indicated in said decree, to the extent of the said one-fifth interest claimed by petitioner.
4th. For other errors apparent, etc.”
The question involved here is whether the conveyance by James Starr to his brother John Starr, under our statute, section 13, chapter 78, Code, can be treated as an advancement to a descendant and the value of which shall be brought into hotch-pot by the holder before he can be allowed to participate in'the distribution of the estate of which the decedent died possessed as a co-parcener or distributee. What was the intention of the law makers in the enactment of section 13, of chapter 78? The section reads as follows: “Where any descendant of a person dying intestate as to Ms estate or any part thereof, shall have, received, from such intestate in his lifetime', or under his will any estate real or personal, by way of advancement, and he or any descendant of his, shall come into the partition and distribution of the estate with the other parceners and distributees, such advancement. shall be brought into hotchpot with the whole estate, real and personal, descended or distributable, and thereupon such party -shall be entitled to his proportion of the estate, real and personal.”
Appellees claim that the word descendant in said section is given a broader meaning by the statute than it had under the common law or than ordinarily attaches to it. And in order that it may have the meaning which appellees would give it they termed them “Statutory descendants” and to show the purpose of the legislature in giving it such meaning in their brief they give us the legislation on it from the time of its incorporation into the Code of 1819 down through the
Reversed.
Dissenting Opinion
(dissenting) :
I grant that tho word “descendant” ordinarily means one who has descended from another in direct line, not a collateral; but the question is, what does the word mean in section 13, chapter 78 of our own Code ? 'That question is not answered by any decision in the Virginias. I further grant that a great volume of law seems to look against the opinion here ventured, holding that only lineal descendants of a decedent can be called to- account for advancements, or demand the benefit of them. I grant, too, that the definition of the word “advancement” generally given is to the effect that it is a pure and irrevocable gift by a parent to his child on account of his supposed share in the parent’s estate after the latter’s death, by the statute of descendants and distribution. The definition of those words given generally confines advancement to lineal heirs. However, I do find some authority for the construction which I would give our act. In Harley v. Harley, 57 Md. p. 342, the opinion gives the word advancement a broader sense, saying that “in legal contemplation, an advancement is simply giving by anticipation the whole or part of what it is supposed the child or party advanced would be entitled to receive on the death of the party making the advancement.” The word “party” is used. Thornton on Gifts and Advancements, sec. 539, reads: “The donor must stand in such blood relation to tho donee that the latter inherits a part of the former’s estate, if he were to die intestate.” “The doctrine of advancement has been extended to cover transactions between uncle and nephew, aunt and niece, and older and younger brothers.” 1 Am. & Eng. Ency. L. 775. I have no access to the authorities cited in the encyclopedia. But I do not rest my opinion on those authorities. I go upon our statute. It is a general principle that “the law of advancements is a part of the law of descents.” 1 Dembitz on Land Titles, 249. Therefore, statutes of descents and advancements should be construed together, they being in pm materia). But in our Code descents, distributions and advancements are dealt with by one and the same chapter. One section sheds light on another. Section 13, chapter 78, says: “When any descendant of a person dying intestate as to his estate, or any part thereof, shall have received from such intestate in Ms life time or under his will any estate, real or personal, by way of advancement, and