Garrett v. Colvin

Terral, J., delivered the opinión of the court. This is a suit for the partition of lands among tenants in common. The parties to the suit are the widow and children of the decedent from whom the estate descended. It appears that the administration of the estate of the decedent is still pending, and that there are debts unpaid, and it does not appear that there is a sufficiency of personal assets in the hands of the administrator to pay the debts. The bill is filed by the widow and three minor children against the two adult heirs, one of whom is the administrator of the estate. It is alleged in the bill, as we understand the intent of the pleading, that one of the defendants had received from the decedent something near $5,000 for his schooling, which is claimed to have been made as an advancement to him; and that the other defendant had received of his father something near $3,000 for his education, which is also alleged to have been made as an advancement to him. A demurrer was interposed to the bill of complaint on two grounds: (1) Because a partition suit did not lie while the estate was in the course of administration ; (2) that the educational expenses of a child could not constitute an advancement. The demurrer was overruled. 1. Under § 3097, code 1892, tenants in common who have an estate in possession, or a right of possession, may bring a partition suit. That the estate of the decedent, from whom the tenants derive title, is in the course of administration, does not [412] affect tlie question; nor will tlie fact that debts may be owing which the personal estate will not satisfy, bar or postpone the exercise of this right. Possession or the right of possession in the tenants gives an absolute and unconditional right to partition, however inconvenient it may be to make it. It might be better for all parties, and doubtless would be the more convenient way, to pay all debts before a partition is made, but such payment of debts is not a condition of the exercise of the right. The statute does not impose such limitation. In New Hampshire, where the statute gives a right to partition among tenants in common, whether in possession, remainder or reversion, in terms very 'similar to our statute in regard to tenants in possession, or with right of possession, the court-on this question say: “Their [the tenants’] right to partition is not affected by the circumstance that the administrator, if’the estate is insolvent, is entitled to the rents and profits pending the administration, nor that he has the right, by a license from the court of probate, to sell the property -for the payment of debts, though it could not often be expedient to commence such a proceeding under such circumstances.” Kelly v. Kelly, 41 N. H., 501. 2. It is the duty of a father to give his son an elementary education, and generally expenses incurred by the father for a university education would not be held as advancements, but we see no reason why a gift of money from a father, to his child, to enable him to take a university education, whether in law, medicine, theology, or in the arts and sciences, should not constitute an advancement, if distinctly intended so to be at the time of the gift. We know of no duty imposed by law upon the father to give his son a collegiate or professional education, and if by agreement with the son, or other distinct expression of such intention at the time of the gift, it is made as an advancement, we think the intention of the father should be carried out. Edwards [413] v. Freeman, 2 Eng. Rul. Cases, 251; 1 Am. & Eng. Enc. L. (2d ed), 767. The order of the chancellor is affirmed.