
    Moore v. Freeman.
    
      Justices of the Peace—Jurisdiction.
    
    A justice’s court has only the jurisdiction expressly conferred by statute. It can have no equity jurisdiction. The power to hear and determine controversies between heirs of an intestate where the fact of advancements to such heirs is to be ascertained, and the legal effect thereof upon their several rights on distribution adjudicated, is an equity power, and cannot be exercised by a justice of the peace. And when an issue of this character is tendered by the plaintiff in a trial there pending, it is the duty of the justice to dismiss the case.
    (Decided December 5, 1893.)
    Error to the Circuit Court of Adams county.
    The action below was brought by the defendant in error against the plaintiff in error, before a justice of the peace, to recover $73.11, with interest, for cash had and received by defendant, being balance due of proceeds of real estate of her father Calvin Moore, her interest being $292.46, of which defendant had paid her only $219.35. Defendant, by answer, denied that plaintiff’s interest amounted to $292.46, and averred that it amounted only to the sum of $219.35, which had been paid.
    At the trial it was shown that Calvin Moore died intestate, leaving a widow and eight children, and seized of 125 acres of land. By a written agreement, the widow and heirs authorized Hosea Moore, (plaintiff in error) to sell the land. This was done, and there remained of the purchase money, after deducting expense of selling and widow’s allowance, $1,754.80. It was further shown that at the time the deed was executed, a question arose as to the amount of the proceeds each heir would be entitled to receive, in view of the admitted fact that advancements had been made by the father to them, in different amounts, and statements were made by several of them upon the subject. These statements the plaintiff before the justice sought to introduce in evidence for the purpose of showing that her interest in the proceeds ■was what she had claimed in the bill of particulars. To the introduction of this evidence the defendant objected. He also filed a motion to dismiss on the ground that the court had no jurisdiction. The evidence was received, over his objection and exception, the motion to dismiss overruled, and a judgment rendered in favor of Mrs. Freeman for the amount of her claim, which was affirmed by the common pleas and by the circuit court.
    
      T. F. Bay less and W. C. Coryell, for plaintiff in error.
    
      Fdenry Scott and Byrne, O'Neil & Wardlow, for defendant in error.
   Spear, J.

It will be noted that the amount Mrs. Freeman admitted she had received, $219.35, was one-eighth of the' total amount for distribution. In order, therefore, to. recover a greater sum she would, necessarily, have to offer proof showing the making of advancements, and their amount. The objection to the evidence -was upon the ground that the justice was without jurisdiction to determine the issue thus sought to be ráised, and the question, therefore, is whether or not a justice of the peace has jurisdiction to try a controversy involving the distribution of a fund between heirs where the question of advancements is involved.

An advancement is an irrevocable gift by a parent to a child, in anticipation of such child’s future share of the parent’s estate, and is to be taken into account upon distribution. Necessarily, therefore, the matter is governed by the statute of distribution.

By our statute (sections 4169, 4170 and 4171), advancements are to be considered as part of the estate so far as regards the division and distribution thereof, and an advancement received is to be taken by each child towards his or her share. If the amount equals or exceeds the share, such child shall be excluded from any further portion, but shall not be required to refund, and if less, shall be entitled to as much more as will give a full share. If the advancement has been made in real estate, the value shall be considered and taken as part of the real estate to be divided, and if in money, or other personal property, it shall be considered as part of the personal estate to be distributed; and if, in either case, it exceeds the share of the real or personal estate that would have come to the heir he shall not refund any part of it, but shall receive so much less out of the other ■ part of the estate as will make his share equal to the other heirs in the same degree of consanguinity.

The statute is evidently framed upon the idea of obtaining equalization among the heirs, “collation,” as it is termed by the civil law; of bringing the mass of property together, and so dividing it that each may have, considering what he has already received, his proper share. To make this possible, all the parties must be before the court, and the court must be so far possessed of equity powers as to be competent to compel the bringing in of all the parties, to afford opportunity to them to interplead and to hear and dispose of the entire controversy upon the equitable principle of the statute.

Justices of the peace have not equity jurisdiction, and it would seen not necessary to argue that, in a suit by one of eight heirs, each one of whom has received an advancement, brought against one who is the common agent of the whole, for distribution, where there cannot be a determination of the controversy without invoking the aid of equity, a justice’s court is not the tribunal in which to conduct the controversy.

Judgment below reversed and case dismissed*  