Adams v. Yancy

Cook, J., delivered the opinion of the court. There is hut one question raised by this record we deem it necessary to consider; that is, are the children [242] of a son, who died before bis father died, entitled to share in the distribution of their grandfather’s estate, unaffected by any debts due by their father to their grandfather? We think this question must be answered in the negative. Undoubtedly the grandchildren of the deceased take by representation, and, in effect, stand in the shoes of their deceased parent. In Hughes’ Appeal, 57 Pa. 179, it is said: “We must take it now as settled beyond recall . . . that grandchildren, whose father died before their grandfather, the intestate, take, not paramount to their father, but through him by representation, such estate as only he would have taken, had he survived the intestate. In the distribution of the grandfather’s estate, the grandchildren, therefore, take subject to the advancements, made to their father, and to such debts from him to the intestate as were recoverable when the estate descended.” In Batton v. Allen, 5 N. J. Eq. 99, 43 Am. Dec. 630, the court said: “A note given by a son to the father is not, of itself, evidence of an advancement by the father. It is evidence of indebtedness by the son. , The amount of the note may be recovered back from the son, either by the father, in his lifetime, or by his personal representatives, after his decease; but no part of an advancement can be recovered back. The very object of the father in taking the note should be presumed to be to avoid inequality, which would result if his personal estate, at his death, should be insufficient to give to each of his other children an equal sum. It is not a gift; the father does not divest himself of the property. . . . For the purpose of settling the distribution, the amount of this judgment debt should have been added to the said surplus — should form a part of the distributive share of the three grandchildren who represented the deceased father, James.” Speaking of the Kansas statute, substantially the same as ours, so far as the same may affect the question here [243] considered, the supreme court of Kansas, in Fletcher v. Wormington, 24 Kan. 259, said: “If the Legislature had intended what the defendant seems to claim that it did, it would in all probability not have added the words that it did after the words ‘his share,’ hut would have added the words, ‘absolutely and unconditionally,’ or some other words of similar import.” See, also, Head v. Spier, 66 Kan. 386, 71 Pac. 834. We think’the case of Norfleet v. Callicott, 90 Miss. 221, 43 South. 616, places this court in line with the decisions just referred to. It appears from the record in this case that the indebtedness of the deceased son is greater than the distributive share of his children,, and, this being true, the grandchildren take nothing in this estate. Reversed and remcmded. OPINION ON SUGGESTION OP ERROR. Cook, J. Careful consideration of the able and earnest brief of counsel in support of the suggestion of error fails to convince the court that there is error in the original opinion in this case. See 62 So. 229. That the courts are divided upon the question decided is true, but we think we have followed the authorities announcing the soundest doctrine. The statute of limitations was not mentioned in the former opinion, because we were of opinion that the statute had not run, and because we expressly decided that appellees would take no interest in their grandfather’s estate. Suggestion of error is overruled.