Harmon v. Bynum ( 1874 )

Walker, J.

Elijah Bynum and his first wife, Elizabeth, were the owners of six hundred and forty acres of land and some personal property, at the death of the wife. Mrs. Bynum died leaving three minor children, Elizabeth, Solomon and Alice.

The husband married a second time, and of this marriage three children, the minor appellees, were born. The father dying, the second wife took her own three children and most of the personal property away from the premises, making her home at another place until her death.

The children of the first marriage growing up, the eldest, Elizabeth, intermarried. with Harmon, the appellant. All the children of the first marriage remained upon the old homestead after the death of their father, making their living upon the land, and using such of the personal property as had been left upon the place.

Harmon administered on the joint estate of Bynum and his first wife. He had a homestead set apart to the' elder children, obtained an allowance for a year’s support, and also obtained an order to sell a portion of the land. Ho allowance appears to have been made to the children by the second marriage. C. C. Tipps, as the next friend of the children by the second marriage of Bynum, carried the proceedings of the probate court to the District Court by certiorari, where the proceedings of the probate court were reviewed and set aside.

The record in this case is so defective that it is almost impossible for us to trace with certainty the proceedings of the District Court, and we shall content ourselves with noticing but one error and laying down a rule by which this case should be tried.

The administrator claims for the children of the first marriage the three-fourths of the land owned by Bynum and his first wife, as well as of the personal property left at the death of the first wife, and the use of three-fourths the land rent free. This the law gives the children of the first marriage, except so far as the personal property may have been used by Bynum in the support of his family, including the children of the first marriage. The children of the first marriage are entitled to an account with the children of the second marriage of the personal property left at the death of their father, and if their mother took this property and used it for their benefit, or it has come to their hands since her death, they should be charged with it in the distribution of the estate.

The estate being insolvent, we see no error in the judgment of the probate court, presuming the judgment to have been supported by proper evidence; but it was error in the District Court to pass upon the facts in this case without the intervention of a jury, unless the trial by jury was waived, which the record does not show.

The administrator should have been permitted to prove the facts- alleged in his reports. The judgment of the District Court is reversed and the cause remanded.

Reversed and remanded.