41 Kan. 556 | Kan. | 1889
The opinion of the court was delivered by
This was an action brought in the district court of Douglas county on July 29, 1886, by George W. White against Kate M. White and Susan E. Spencer, for the partition of certain real estate, less than one acre, situated in the city of Lawrence, in said county. The plaintiff claimed an undivided one-sixth interest in such real estate. The case was tried before the court without a jury, and the court made special findings of fact, and rendered judgment against the plaintiff for costs; and the plaintiff, as plaintiff in error, brings the case to this court. The property belonged originally to Thomas H. White, who died intestate on April 11, 1872. The plaintiff in this action was and is his oldest child, and the son of the deceased’s first wife. The defendant Kate M. White was the fourth wife of the deceased, and was married to him in 1868. The defendant Susan E. Spencer disclaimed
The counsel for the plaintiff makes a very ingenious argument with respect to his first and second points, but still
“Sec. 26. Property given by an intestate, by way of advancement to an heir, shall be considered part of the estate, so far as regards the division and distribution thereof, and shall be taken by such heir toward his part of the estate at what it would now be worth, if in the condition in which it was so given him.
“Sec. 27. But if such advancement exceeds the amount to which he would be entitled, he cannot be required to refund any portion thereof.”
Section 26, above quoted, is general in its terms with respect to the division and distribution of the intestate’s estate, and we think it is equally general in its scope and operation. It is intended to have application to all divisions and distributions of the intestate’s estate among all persons who are authorized to take from him under the statutes. It is intended to have application to all divisions and distributions made under §§ 5 and 6 of the statute, as well as under §§ 8 and 18 to 25, and under all the other sections of the statute, and will modify and control their operation accordingly; and it will certainly apply to widows as well as to all other persons who may take distributive shares from the intestate under the statutes ; and under the statutes and in cases like the present, the widow’s share is one-half of the estate, and the children take the other half in equal shares. In the present case, and aside from the advancement where the estate is worth $5,000, and where there is a surviving widow, and where there are three surviving children, the widow’s share will be in value equal to $2,500, and each child’s share will be in value equal to eight hundred and thirty-three dollars and thirty-three and one-third cents; but as the plaintiff in this case has already received much more than his distributive share, the share that would otherwise go to him must be divided among the others according to their respective interests in the estate; and as the widow’s share is equal to three times any one of the children’s shares, she should receive three-fifths of the plaintiff’s share, or an amount equal to $500, and each of the children, other
The plaintiff also objects to the testimony of Dr. R. Morris, the administrator of the estate, who testified, among other things, as follows: “That although the estate was not finally settled, the other children had received no distributive share as heirs, and that there was nothing in his hands to distribute.” This testimony was objected to upon the ground that it was not the best evidence, and that the records of the probate court were. We think that the evidence was competent and sufficient for the purpose for which it was introduced. It simply shows that the administrator himself had not distributed anything to the two children other than the plaintiff, and that there was nothing in his hands to be distributed. These were facts independent of the records of the probate court, and there was no intention by this evidence to show what was contained in such records, or what was not contained therein. It must also be remembered that the intestate died in April, 1872, and that this testimony of the administrator was not given until in May, 1887; hence it tended to prove that there was no other property at that great length of time after the death of the intestate to be divided or distributed or to be affected by the intestate’s advancement to the plaintiff.
The plaintiff also claims that there was not sufficient evidence to prove that any advancement had been made by the
The judgment of the court below will be affirmed.