Napton, Judge,
delivered the opinion of the court.
Several points have been discussed in this case which we think it unnecessary to determine.
The answers of Sweringen, Mitchell, Goode, &c., involve the proper construction of Christy’s will. At the date of this will, two of the testator’s daughters were dead — one of them, Mrs. Wash (previously Mrs. Berry), leaving three children— and the other, Mrs. Farrar, leaving one daughter, Mrs. Sweringen. The third and eighth clauses of the will declare what portion of his'estate undisposed of these grand-children should take. They provide that the three children of Mrs. Wash shall have their mother’s share, and the one child of Mrs. Farrar shall have only half of her mother’s share ; but, in undertaking to describe what the mother’s share in each case would be, the testator uses language to indicate a child’s portion of his entire estate, without reference to the deductions already made from it by his specific legacies to his daughter "Virginia and to his executors for the payment of his debts. He speaks of it as “ such portion of my landed estate as would have been her mother’s had she survived me and I had died intestate.” Of course, if the testator had died intestate, Mrs. Sweringeu’s mother would have been entitled to one-seventh (or a child’s part) of his entire estate, and one-half of this one-seventli is what Mrs. Sweringen now claims, and one-tliird is demanded as the share of each of the children of Mrs. Wash.
The testator had already devised specific portions of his real estate to his daughter Virginia, and also a portion of his real estate to his executors for payment of his debts. Three of his daughters he did not name in his will at all. If we construe the intestacy alluded to in these devises to Mrs. Sweringen and to the children of Mrs. Wash as a total intestacy, the effect of such construction is either to force the specific devisees into hotch-pot with the other children named and not named, or to diminish the shares of the children not named by subtracting from them the amount of the [564]*564estate specifically devised. A reference to the entire scope of the will will show that either of these results would be directly contrary to the intent of the testator.
Unless the will so provided, it is plain that the specific devisee is not bound to bring her legacy into hotch-potch. A devise is not an advancement in the meaning of the statute. As the share of Virginia, the specific devisee, could not be disturbed, then the effect of the construction contended for by the representatives of Mrs. Wash and Mrs. Farrar is to throw the entire burden of the specific devises upon the children not named, whose shares would thus be diminished in exact proportion to the increase of the specific devises ; whilst the share of the grand-children who are named, and named with altogether another purpose in the testator’s mind, would be more and more disproportionate to the shares of the children not particularly named. The testator had evidently no such purpose in contemplation. He was providing only in reference to that portion of his estate not already disposed of, and his intention seems to have been that it should be distributed exactly as the law would distribute it, except in one particular. For reasons satisfactory to himself, he declared that Mrs. Sweringen should only have one-half of her mother’s share. His only reason for mentioning the representatives of his two deceased daughters was to determine their shares according to what he esteemed right, without regard to the rule which the law of descents might apply, concerning which he was uninformed, and against the operation of which, if it should conflict with his intentions, ho wished to guard. He therefore virtually says: “ I devise all my estate, which I have not disposed of in this will, to be legally divided among my children; and as to the children of my deceased daughters, Mrs. Farrar and Mrs. Wash, my will is that the three children of the latter shall have each one-third of their mother’s share, and that Mrs. Sweringen shall not have the full share of her mother, but only a half shareand the intestacy he alludes to is intestacy as to the [565]*565property be was then speaking of, and not as to that portion of his estate already devised.
The answers of Mitchell, Goode and Sweringen were therefore properly stricken out.
So much of the answer of Susan P. Christy as relates to the suits now pending on the bonds given by Howard Christy to the heirs of William Christy appears to be foreign to any issues in this case. If the facts alleged are a good defence in equity or law to those suits, why litigate the matter here ? The answer asserts that the defence is a good one, and if so, the suits upon the bonds can not result to her injury.
The answer of Susan P. Christy also stated that in the former partition of W. Christy’s estate, a lot (No. 256) had been assigned to her husband, Howard Christy, which it turned out had been conveyed by William Christy in his lifetime to Bernard G. Farrar; that this allotment by the commissioners was made in ignorance of the fact and by mistake ; and the court is asked to allow her for the value of the lost lot in the division now to be made. The right of Howard Christy or his devisee to have this mistake corrected is the question involved in this portion of Susan Christy’s answer. This right has been chiefly based upon a warranty which every partition among coparceners is supposed to create. It is insisted that this warranty was by the common law annexed to every compulsory partition among coparceners, and that no statute in Missouri has altered the law in this respect. On the other hand, it is argued that the estate of coparcenary as known in England has no existence here ; and, whether it exists or not, that the doctrines of implied warranty in reference to this estate have never been adopted here, and are contrary to the spirit, if not the letter, of our laws; and finally, that, admitting the existence of the estate and of the doctrine of warranty in connection with it, still, under the doctrine as understood in England, the alienee of a coparcener is not entitled to the benefit of it, and that Mrs. Susan P. Christy is therefore not in a position to assert the claim. We do not propose to examine these questions, although they [566]*566have been extensively discussed. Waiving their consideration entirely, we do not see any good reasons why Howard Christy, if living, might not, upon ordinary principles of equity, assert the claim which is now urged by his widow. Whether his devisee, Mrs. Christy, occupies as favorable a position as he would, is another question, which we will separately examine.
Laying aside all considerations of a warranty, express or implied, we have a state of facts alleged in the answer which would seem to authorize the action of a court of equity under its ordinary jurisdiction over accidents or mistakes. A partial partition of Christy’s estate is made, in which a lot has been assigned to his son Howard which the father had several years before conveyed away. The fact was not known at the time of the partition by any of the parties to it, or to the commissioners who made the allotment. The partition embraced only a portion of the estate, and a second and final partition of the residue is about to be made.
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Napton, Judge,
delivered the opinion of the court.
Several points have been discussed in this case which we think it unnecessary to determine.
The answers of Sweringen, Mitchell, Goode, &c., involve the proper construction of Christy’s will. At the date of this will, two of the testator’s daughters were dead — one of them, Mrs. Wash (previously Mrs. Berry), leaving three children— and the other, Mrs. Farrar, leaving one daughter, Mrs. Sweringen. The third and eighth clauses of the will declare what portion of his'estate undisposed of these grand-children should take. They provide that the three children of Mrs. Wash shall have their mother’s share, and the one child of Mrs. Farrar shall have only half of her mother’s share ; but, in undertaking to describe what the mother’s share in each case would be, the testator uses language to indicate a child’s portion of his entire estate, without reference to the deductions already made from it by his specific legacies to his daughter "Virginia and to his executors for the payment of his debts. He speaks of it as “ such portion of my landed estate as would have been her mother’s had she survived me and I had died intestate.” Of course, if the testator had died intestate, Mrs. Sweringeu’s mother would have been entitled to one-seventh (or a child’s part) of his entire estate, and one-half of this one-seventli is what Mrs. Sweringen now claims, and one-tliird is demanded as the share of each of the children of Mrs. Wash.
The testator had already devised specific portions of his real estate to his daughter Virginia, and also a portion of his real estate to his executors for payment of his debts. Three of his daughters he did not name in his will at all. If we construe the intestacy alluded to in these devises to Mrs. Sweringen and to the children of Mrs. Wash as a total intestacy, the effect of such construction is either to force the specific devisees into hotch-pot with the other children named and not named, or to diminish the shares of the children not named by subtracting from them the amount of the [564]*564estate specifically devised. A reference to the entire scope of the will will show that either of these results would be directly contrary to the intent of the testator.
Unless the will so provided, it is plain that the specific devisee is not bound to bring her legacy into hotch-potch. A devise is not an advancement in the meaning of the statute. As the share of Virginia, the specific devisee, could not be disturbed, then the effect of the construction contended for by the representatives of Mrs. Wash and Mrs. Farrar is to throw the entire burden of the specific devises upon the children not named, whose shares would thus be diminished in exact proportion to the increase of the specific devises ; whilst the share of the grand-children who are named, and named with altogether another purpose in the testator’s mind, would be more and more disproportionate to the shares of the children not particularly named. The testator had evidently no such purpose in contemplation. He was providing only in reference to that portion of his estate not already disposed of, and his intention seems to have been that it should be distributed exactly as the law would distribute it, except in one particular. For reasons satisfactory to himself, he declared that Mrs. Sweringen should only have one-half of her mother’s share. His only reason for mentioning the representatives of his two deceased daughters was to determine their shares according to what he esteemed right, without regard to the rule which the law of descents might apply, concerning which he was uninformed, and against the operation of which, if it should conflict with his intentions, ho wished to guard. He therefore virtually says: “ I devise all my estate, which I have not disposed of in this will, to be legally divided among my children; and as to the children of my deceased daughters, Mrs. Farrar and Mrs. Wash, my will is that the three children of the latter shall have each one-third of their mother’s share, and that Mrs. Sweringen shall not have the full share of her mother, but only a half shareand the intestacy he alludes to is intestacy as to the [565]*565property be was then speaking of, and not as to that portion of his estate already devised.
The answers of Mitchell, Goode and Sweringen were therefore properly stricken out.
So much of the answer of Susan P. Christy as relates to the suits now pending on the bonds given by Howard Christy to the heirs of William Christy appears to be foreign to any issues in this case. If the facts alleged are a good defence in equity or law to those suits, why litigate the matter here ? The answer asserts that the defence is a good one, and if so, the suits upon the bonds can not result to her injury.
The answer of Susan P. Christy also stated that in the former partition of W. Christy’s estate, a lot (No. 256) had been assigned to her husband, Howard Christy, which it turned out had been conveyed by William Christy in his lifetime to Bernard G. Farrar; that this allotment by the commissioners was made in ignorance of the fact and by mistake ; and the court is asked to allow her for the value of the lost lot in the division now to be made. The right of Howard Christy or his devisee to have this mistake corrected is the question involved in this portion of Susan Christy’s answer. This right has been chiefly based upon a warranty which every partition among coparceners is supposed to create. It is insisted that this warranty was by the common law annexed to every compulsory partition among coparceners, and that no statute in Missouri has altered the law in this respect. On the other hand, it is argued that the estate of coparcenary as known in England has no existence here ; and, whether it exists or not, that the doctrines of implied warranty in reference to this estate have never been adopted here, and are contrary to the spirit, if not the letter, of our laws; and finally, that, admitting the existence of the estate and of the doctrine of warranty in connection with it, still, under the doctrine as understood in England, the alienee of a coparcener is not entitled to the benefit of it, and that Mrs. Susan P. Christy is therefore not in a position to assert the claim. We do not propose to examine these questions, although they [566]*566have been extensively discussed. Waiving their consideration entirely, we do not see any good reasons why Howard Christy, if living, might not, upon ordinary principles of equity, assert the claim which is now urged by his widow. Whether his devisee, Mrs. Christy, occupies as favorable a position as he would, is another question, which we will separately examine.
Laying aside all considerations of a warranty, express or implied, we have a state of facts alleged in the answer which would seem to authorize the action of a court of equity under its ordinary jurisdiction over accidents or mistakes. A partial partition of Christy’s estate is made, in which a lot has been assigned to his son Howard which the father had several years before conveyed away. The fact was not known at the time of the partition by any of the parties to it, or to the commissioners who made the allotment. The partition embraced only a portion of the estate, and a second and final partition of the residue is about to be made. Before any final distribution, the court is called upon to have this mistake corrected, not by any disarrangement of the former partition, but simply by taking the lot into estimation in determining the shares of the son to whom the lost lot was assigned in the former partition. I do not perceive that it is necessary to invoke any principle of warranty in such an application. The plainest principles of equity require that the mistake should be corrected, if it can be done without injustice to others; and what is to prevent it here ? No final partition has been made ; the partition is still in fieri, still in the power and under the control of the court. The two partitions may be regarded as parts of one transaction so far as the rights of all the parties here are concerned. In the first partition, which was a partial one, a lot was assigned to Howard Christy which was really no part of his father’s estate, which in fact had been conveyed away by a deed duly acknowledged and recorded years before. Another portion of the estate is now to be divided, and there is certainly nothing inequitable that this error should be corrected. It is hardly [567]*567proper to call this a failure of title ; there was no defect in Wm, Christy’s title at the date of the conveyance to Farrar, but this conveyance was made long before his death, and, although on record, was unknown to all the parties to the partition of 1848. The assignment of lot 256 to Howard F. Christy was merely a mistake. If a final partition of his estate had been made, the only ground perhaps upon which that partition could be disturbed by the state of facts averred in this answer would be an implied warranty. But viewing this partition as incomplete, as still going on, we do not sec why, without reference to any warranty, a mistake in a partial partition may not be corrected in a subsequent one, just as under our statute of descents and distributions a probate court would regulate such equities in distributions of personal property from time to time among the personal representatives of the decedent. This would seem to be very clear if Howard Christy was alive and now asking the interposition of the court to give him the benefit of this equity in the final division of his father’s estate. Has his devisee, Mrs. Christy, the same right ?
The doctrine of implied warranty on a compelled partition among coparceners is not free from obscurity in some of its details, but it seems to be a part of that doctrine as known in England and adopted in some portions of this country, that when the privity of estate is destroyed by an alienation, neither the coparcener nor the alienee has any recourse upon the remaining coparceners. (Allnatt, sec. 3; Sawyer v. Cator, 8 Humph. 256.)
This however is not the redress sought here. The relief demanded does not require any disturbance of the former partition. Is this equitable claim purely personal, and was it extinguished by the death of Howard Christy ? If it was not, it would go to his heir, unless his will has created a testamentary heir.
It would seem from our statute concerning wills, that whatever is descendible is devisable. That statute authorizes the testator to dispose of “ all his estate, real, personal [568]*568and mixed, and all interest therein.” It is fully as broad as the statute of descents and distributions, which embraces every “ title to any real estate of inheritance or personal estate undisposed of.” In England, even before the statute of I. Vic. ch. 26, the power of testamentary disposition extended “to all interest in real and personal estate which, at the decease of the testator, would, if not so disposed of, devolve to his general, real or personal representatives, whether the testator be the legal or beneficial owner only or unite in himself both these characters.” (1 Jarman on Wills, ch. 4, р. 81.) And in most parts of the United States the settled test of a-devisable interest is that it is descendible. (4 Kent, с. 512-13.)
The will of Howard Christy uses language as comprehensive as could well be found. It devises all his estate, real, personal and mixed, in Kentucky, Missouri and elsewhere, present and expectant. If a will can be framed to clothe the devisee with all the rights of heir, this would seem to have accomplished that purpose.
The only real question then left is, whether the right oi Howard Christy to a distribution or partition of his father’s land — the amount and value of which is to be determined by a mistake in a former partition — ceased with his death. The equity is not in the lands which have been partitioned, but in the lands now subject to partition. His share of these lands, without reference to the former mistake, is not denied, and that his interest passed to his widow under his will is not denied. Had he left children, their right to the same equitable division which lie had would hardly be denied. It would seem to follow that his devisee is entitled to the same right. Suppose, in a division of personal property, the administrator, under the sanction of the probate court, had, in the distribution of a portion of an estate in money, made a plain arithmetical miscalculation, by which one of the distri-butees received a thousand dollars less than he was entitled to upon a correct application of the common rules of arithmetic, could not that distributee, upon a final division of the [569]*569remaining portion of the estate and an ascertainment of the mistake, have it corrected ? Could not his heir or devisee, if he died before final distribution ?
What there is in this case to prevent the application of these familiar principles of equity, I do not see. Much learning, it is true, has been explored, and the ancient doctrine of warranties by implication has been cited with approbation on one side and denunciation on the other. I think the action may be dispensed with in this case and justice still be done. When it shall become necessary to determine its existence or extent here, it will be time enough to say how far it may consist with our laws and usages and necessities, and how far positive enactments or long disuse may have rendered it inoperative.
Our opinion is, that Mrs. Christy’s answer in relation to lot 256 ought not to have been stricken out. It would be premature to determine upon what basis the value of this lot should be settled. The answer being stricken out, the facts have not been sufficiently developed upon which the court could now form a definite opinion. The facts may indeed not turn out as stated in the answer, but, assuming that they are mainly and essentially correct, we incline to the opinion that the value of the lot at the time of the first partition is the proper basis of relief in the new decision. As it could not be foreseen whether the value of the lot 256 would appreciate or depreciate, whether it would be productive or unproductive, its simple value in 1843, without reference to speculations as to its rise or fall, its productiveness or unproductiveness, seems to be the fair allowance to Mrs. Christy in the present partition suit. To give her the increased value of the lot now, or the interest on its value in 1843, would be speculating on contingencies too remote.
Judge Richardson concurring,
the judgment will be reversed and the cause remanded.
Scott, Judge.
I do not understand how, as devisee, Mrs. Christy is entitled to the relief she seeks in regard to the lot [570]*570assigned to her husband in the first partition, the title to which afterwards failed. The closeness of her relationship to her husband can have no influence. As devisee, so far as this question is concerned, she occupies a position not superior to that of one, as devisee, who was a stranger to the devisor. Does a mere right of action growing out of the purchase of a lot of land by a devisor pass to the devisee of that land ? Suppose H. Christy had acquired by purchase a lot devised to his wife, and the vendor in the transaction, there being no warranty, had committed a fraud — had represented that he had a good title, knowing that he had not— would Mrs. Christy, as devisee of the lot, have had a right of action to recover damages for the fraud committed by the vendor ? If there was nothing now but money to distribute among the heirs of Vm. Christy, would not Mrs. Christy’s claim to the indemnity she seeks be as strong as though there was land to be divided, as it turns out to be ? If money was to be distributed, her case would not vary from that supposed, and can her right to relief depend on the nature of the fund out of which it is sought ? Would not her equity to the money be as valid as it is to the remaining land ? A right to enter for a condition broken, or under the warranty annexed to an exchange, is not devisable, nor is the benefit of a condition unless it be annexed to a reversion. (4 Kent, 510.)