Imágenes de páginas
PDF
EPUB

heirs. Lumley v. Haggerty, 110 Mich 552 (68 N. W. Rep. 243).

Sec. 194. Advancements. Unless it clearly appears that such was the intention of an ancestor, the use of part of his estate to procure the release of his son-in-law from prison will not be treated as an advancement to the latter's wife. Booth v. Foster, 111 Ala. 312 (20 So. Rep. 356; 56 Am. St. Rep. 52). Construing Wis. Rev. Stat., § 3959, providing that" All gifts and grants shall be deemed to have been made in advancement, if they are expressed in the gift or grant to have been so made, or if charged in writing by the intestate as an advancement or acknowledged in writing as such by the child or other descendant," it is held that parol evidence is inadmissible to prove an advancement. Pomeroy v. Pomeroy, 93 Wis. 262 (67 N. W. Rep. 430). Where a child has received a certain portion in full share of his father's estate, on the death of his father, he is ordinarily barred from further participation in the distribution or partition of the residue of such estate, and in case of his death before his father's his children will be barred from such participation for the same reason and to the same extent their father would be barred. man v. Coffman, 41 W. Va. 8 (23 S. E. Rep. 523).

Coff

Sec. 195. Rights of creditors as against heirs. Apply. ing Mo. Rev. Stat., 1889, § 8839, which abolishes lineal and collateral warranties but makes heirs and devisees of persons who have made any covenant answerable upon such covenant to the extent of lands received, it is held that where an insolvent and nonresident heir and devisee brought suit to recover land sold and warranted by her ancestor, the defendant may have the judgment stayed until his damages for the ancestor's breach of warranty, and the liability of the plaintiff therefor, have been determined. Rumsey v. Otis, 133 Mo. 85 (34 S. W. Rep. 551). In Kansas it is held that, where, after the administration of an ancestor's estate in which it is reduced to money and distributed to his heirs, a breach accrues in a covenant of warranty made by him in his life time the obligee may maintain a suit in equity against such heirs and compel them to refund to him so much of what they have received as

shall be sufficient to satisfy his damages.

Rohrbaugh v.

Am. St. Rep.

Hamblin, 57 Kan. 393 (46 Pac. Rep. 705; 57 334). Purchasers of land from heirs of an estate, before administration has been had and closed, take it subject to debts and expenses of administration; and they cannot complain of the delay of a creditor in having an administration. Flood v. Strong, 108 Mich. 561 (66 N. W. Rep. 473). N. C. Code Civ. Pro., § 153, subd. 2, construed and applied-statute of limitations as a defense to an action against heirs for debts of their decedent. Lee v. McKoy, 118 N. C. 518 (24 S. E. Rep. 210), overruling Syme v. Badger, 96 N. C. 197 (2 S. E. Rep. 61). Kan. Gen. Stat., par. 2958, applied-personal judgment against heirs for their ancestor's debts. Hamblin v. Rohrbaugh, Kan. App. (42 Pac. Rep. 834).

Sec. 196. Miscellaneous notes-Statutes construed. Construing Iowa Code, §§ 2455-2457, which provides that "If the intestate leave no issue, the one-half of his estate shall go to his parents and the other half shall go to his wife; if he leaves no wife, the portion which would have gone to her shall go to his parents; if one of his parents be dead, the portion which would have gone to such deceased parent shall go to the surviving parent, including the portion which would have belonged to the intestate's wife, had she been living; if both the parents be dead, the portion which would have fallen to their share by the above rules shall be disposed of in the same manner as if they had outlived the intestate and died in possession and ownership of the portion thus falling to their share, and so on through ascending ancestors and their issue," it is held that a surviving stepmother of one who died unmarried after his father without issue, is entitled to one-third of the share which would have gone to her husband. In re Parker's Estate, 97 Ia. 593 (66 N. W. Rep. 908). Where an ancestor divided all of his property among his children and grandchildren by an instrument declaring that he held the same in trust for them, subject to a life estate in himself, they take by purchase and not by descent. Latrobe v. Carter, 83 Md. 279 (34 Atl. Rep. 472). A child of a remainderman, who by the terms of the will creating the estate is entitled to receive it in case of the death of the remainderman pending

the intervening estate, in such case takes by purchase and not by descent. Dunlap v. Fant, 74 Miss. 197 (20 So. Rep. 874). 1 Hill's Wash. Code, § 1480, subds. 6, 7, § 1495, subd. 3, construed and applied-descent of property of unmarried minor, Fort v. West, 14 Wash. 10 (44 Pac. Rep. 104). Under Kan. Comp. Laws 1862, p. 470, when a child died intestate, leaving no wife or issue, the whole of his estate went to his father. Gray v. Holmes, 57 Kan. 217 (45 Pac. Rep. 596; 33 L. R. A. 207). Particular evidence examined and held sufficient to establish legitimacy of one claiming to be an heir. Metheny v. Bohn, 160 Ill. 263 (43 N. E. Rep. 380).

DESCRIPTION OF REAL ESTATE.

EPITOME OF CASES.

A

Sec. 197. Sufficiency of-General principles. deed will not be rejected as void because of a manifest error in designating one of the courses in the description where, from the correct courses and distances given, it is possible to complete the description by metes and bounds. Robinson v. Allison, 109 Ala. 409 (19 So. Rep. 837). A description of land will not be held void for uncertainty if the instrument provides a method by which it may be determined what property it was intended to describe. Lingeman v. Shirk, 15 Ind. App. 432 (43 N. E. Rep. 33); Sulphur Mines Co. v. Thomp son's Heirs, 93 Va. 293 (25 S. E. Rep. 232). A definite and accurate description by metes and bounds from which the location of the land can be determined is sufficient, although, by mistake, the land is designated as lying in the "northwest," instead of the "northeast," quarter. Frick v. Godare, 144 Ind. 170 (42 N. E. Rep. 1015). A description in a deed is sufficiently certain when made so by reference to another deed, map, or instrument where it is set forth. In such cases the map or instrument referred to becomes a part of the deed containing the reference, and the description is regarded as of the same effect as if copied into the deed itself. Sanders v. Ransom, 37 Fla. 457 (20 So. Rep. 530). A description

which is so indefinite that it cannot be identified or located by a surveyor is insufficient. Lowe v. Turpic, 147 Ind. 652 (44 N. E. Rep. 25; 37 L. R. A. 233). For an exhaustive review of authorities upon the purpose and sufficiency of descriptions in deeds, with quotations from particular cases, see Huberman v. Evans, 46 Neb. 784 (65 N. W. Rep. 1045). As to sufficient description in deed, referring to "Sketch hereunto attached," see Hutchcroft v. Lutwig et al., 13 Wash. 240 (43 Pac. Rep. 29).

Sec. 198. Sufficiency of particular descriptions. A description of land in a mortgage as parts of certain specified lots in a designated land district of a given county, "it being the land purchased by J. L. Henson from J. E. Derrick," was held not to be so totally defective and uncertain as to render the mortgage inadmissible in evidence in an action for its foreclosure; and it was competent to identify by parol evidence the land covered by the mortgage. Derrick v. Sams, 98 Ga. 397 (25 S. E. Rep. 509; 58 Am. St. Rep. 309). To the same effect is the case of Leake v. Caffey, Miss. (19 So. Rep. 716). A description in a deed of the land sought to be conveyed, as a fraction of a certain lot in a certain block without stating anything to designate what portion of the lot is intended, is insufficient. fory v. Palace Dry-Goods & Shoe Co., 30 Or. 196 (46 Pac. Rep. 786). Where a conveyance by a father to his son described the land conveyed as "all my right, title, and interest in the estate of J. W. B., purchased by me at administrators's sale in behalf of my son," the description was held sufficient. Vineyard v. O'Connor, Tex. Civ. App. (35 S. W. Rep. 1084); Vineyard v. O'Connor, 90 Tex. 59 (36 S. W. Rep. 424). A description "Ten acres off of the south end of the northeast quarter of section 35, in township 19 north, in range 7 east, except four acres off of the west side of said ten-acre tract, heretofore conveyed to Cassana McGill," has been held sufficient. Barton v. Cridge, 145 Ind. 673 (44 N. E. Rep. 541). "One lot, upon which a brick building is situated, containing two stores, on the east side of a vacant lot in the Town of Brundidge, situated in section 26, township 9, range 22, which said vacant lot extends back one hundred and five feet, and is bounded on

the west by G. W. Hunter's lot," is held to be an insufficient description to support a judgment of ejectment. Griffin v. Hall, 111 Ala. 601 (20 So. Rep. 485).

Sec. 199. Construction of descriptions. A conveyance of the land south of a designated "railway cut" embraces only the land lying adjacent to and south of the upper line of the excavation. Newton v. Louisville & N. R. Co., 110 Ala. 474 (19 So. Rep. 19). Where there is given a general and a particular description of lands, and the two are repugnant to each other, the particular description will control. Carter v.

Chevalier, 108 Ala. 563 (19 So. Rep. 798). Where an administrator's petition to sell a town lot, the decree for the sale and the deed in pursuance thereof all describe the property sold by metes and bounds and further designate it as "constituting the only realty of said estate," title will only pass to the portion embraced in said description although the decedent owned more real estate adjacent which formed part of the same lot. Bromberg v. Yukers, 108 Ala. 577 (19 So. Rep. 49). Where a deed contains two descriptions of the property conveyed one of which is erroneous it may be rejected although it purports to be by metes and bounds. State Sav. Bank v. Stewart, 93 Va. 447 (25 S. E. Rep. 543).

Sec. 200. Evidence to aid construction of. Extraneous evidence is admissible to explain a latent ambiguity. Robin. son v. Allison, 109 Ala. 409. (19 So. Rep. 837). Extrinsic evidence is admissible to ascertain the location of the adjoining lands referred to in a deed so as to apply it to its proper subject-matter. Sulphur Mines Co. v. Thompson's Heirs, 93 Va. 293 (25 S. E. Rep. 232). A devise of "all of one's estate," or a certain "plantation," described as being in a given county, is not void for uncertainty; and extrinsic evidence is admissible to show that a particular tract constituted a component part of the land intended to be embraced within such general descriptive terms. Flannery v. Hightower, 97 Ga. 592 (25 S. E. Rep. 371). An uncertain description may be made certain by the subsequent acts of the parties. Emshwiller v. Tyner, 16 Ind. App. 133 (44 N. E. Rep. 811). For

« AnteriorContinuar »