Garrett v. Colvin

• Decision Date: 18 December 1899
• Court: Mississippi Supreme Court
• Parties: OSCAR C. GARRETT ET AL. v. CAROLINE COLVIN ET AL

26 So. 963

77 Miss. 408

OSCAR C. GARRETT ET AL. v. CAROLINE COLVIN ET AL

Supreme Court of Mississippi

December 18, 1899

December 1899

FROM the chancery court of Lauderdale county, HON. NATHAN C. HILL Chancellor.

Caroline Colvin and others, appellees, were the complainants in the court below; Garrett and others, appellants, were defendants there. The facts are fully stated in the opinion of the court.

The order of the chancellor is affirmed.

Miller & Baskin, for appellants.

The bill was prematurely filed. Why go through the ceremony of partitioning this property before the debts are paid? The bill shows that there are debts to be paid, and that there is not sufficient personal property to pay them. To partition now is idle, because it is manifest that it will hereafter be necessary to apply to the court for a second partition of the property. An orderly administration of the estate should first be made. There should be sufficient time to ascertain the debts due from the estate, and this will require one year, as fixed by the law; after that, whatever remained could be partitioned amongst the heirs. The heirs should wait until the creditors are satisfied before they undertake to divide the property amongst themselves. Let the creditors first be paid, and justice in this way done, then let the heirs distribute what remains amongst themselves, and if they cannot agree upon a distribution or partition, let them apply to the courts. The courts should not grant a useless decree or do a vain thing. In Saxton v. Ames, 47 Miss. 565 the only Mississippi case cited by appellee, it appeared that the assets in the hands of the administrator were ample to pay all the debts.

The bill shows that the pretended advancements could not have been advancements in law. The facts are stated. The money was placed by the decedent into the hands of his sons, while yet under age, for the purpose of educating them. Money expended by a father in the education of his son is not an advancement. 1 Am. & Eng. Enc. L., 217; Miller's appeal 80 Am. Dec., 555. Surely the special demurrer to that part of the bill relating to the subject of advancements should have been sustained.

G. Q. Hall & Son, for appellees.

Why may not partition of realty be had pending administration? On the death of the owner his real estate descends to his heirs. It is liable to be subjected, it is true, in the specific mode pointed out by statute to the payment of his debts, but until that is done their dominion is perfect and exclusive. They may divide it, lease it, sell it. mortgage it, or do whatever else with it they see proper. And if they may own it, possess and manage it, and dispose of it, why may they not have their joint interest in it set apart in severalty by legal procedure? That they may do so by agreement cannot be doubted; and if so, why may not it be done by order of court? This court, in Saxon v. Ames, 47 Miss. 565, recognizes the right to partition pending administration. There is nothing in the statute prohibitive thereof, but, on the contrary, § 3097, code 1892, confers the power on the chancery court to make partition of lands among joint tenants, tenants in common, or coparceners, having an estate in possession, or having a right of possession, and it further provides that if the lands be held by devise or descent, division may be ordered by the chancery court in which the will was probated or letters of administration granted. There is no such limitation on the right to partition, or the power of the chancery court, as contended for by appellants. The bill alleges that the payments were intended as advancements by intestate, and the demurrer so admits. In that state of case the court could but overrule the demurrer.

As a general rule money expended in the maintenance and education of a child is not to be deemed an advancement. But if the intention of the parent appear to have been to make an advancement, the expenditure will be so treated. 1 Wait Act. & Def., p. 207, sec. 2; Riddle's Est., 19 Pa. St. R., 431; Mitchell v. Mitchell, 8 Ala. 414; Johnson v. Beldon, 20 Conn. 326; Cooper v. Wray, 3 Strobh. Eq. (S. C.), 185; 1 Am. & Eng. Enc. L. (2d ed.), 767, note 8, and authorities there cited.

In State v. Stevenson, 12 Mo. 178, it was held that where elder children had been educated by payments out of the parents' estate and distribution made before the younger ones had such advantage, the payments should be charged against the elder children as advancements.

OPINION

TERRAL, J.

This is a suit for the partition of lands among tenants in common. The parties to the suit are the...