
    8023
    MULDROW v. MIXON, ADMR.
    1. Partition. — The Court may approve partition of personal property followed by possession, among minors who have reached years of maturity, if the circumstances were such as would have warranted the Court in making such division on application, notwithstanding objection by one participant.
    2. Rents. — An administrator, with the will annexed is justly allowed commissions for collecting and paying out rent from lands’ belonging to the devisees not passing under the will, where he administered at their request and one provision of the will was that the devisees should be educated out of the income from the property.
    Before Aldrich, J., Barnwell, August, 1910. ■
    Affirmed.
    
      Action by Essie L. Muldrow, by guardian, against R. M. Mixon, administrator. Plaintiff appeals.
    
      Messrs. Willcox & Willcox, for appellant,
    cite. Minor should be charged with necessaries only: 3 Brev., 194; 2 N. & Me, 524; 1 McC. 572; 2 Hill Ch. 541; 5 Rich. Eq. 274; 2 Strob. Eq. 289; 13 Rich. 163. Infant may repudiate, purchase of land on attaining majority: 29 S. C. 414; 47 S. C. 286. Probate cotirt has no jurisdiction of action for accounting outside of administration: 12 S. C. 556.
    
      Messrs. Bates and Simms, contra,
    cite: Court will confirm an act which it would have sanctioned on application. 2 Hill Ch. 217.
    November 1, 1911.
   The opinion of the Court'was delivered by

Mr. Chief Justice Jones.

This is an appeal from a decree of the Circuit Court affirming the judgment of the probate court of Barnwell county, adjusting the accounts of R. M. Mixon as administrator with will annexed of the estate of Willa I. Loud.

The exceptions present two- questions (1) whether the .administrator was justified in charging appellant with a piano-, at a valuation of $400 ; (2) whether the administrator had a right to take charge of the real estate of plaintiff, not acquired under the will of her mother, and to- charge commissions on the rents collected therefrom.

Willa I. Loud died testate in the summer of 1905 and, upon the death of .the executrix named in- the will, the defendant Mixon, at the solicitation- of the beneficiaries, was appointed administrator with will annexed. In the fourth clause of the will the testatrix devised and bequeathed to her children, Cary Smith Loud and Essie Ashten Loud, all of hér property of eveiy nature and kind whatsoever, and in the sixth clause she declared it her will and desire that her said daughters shall be educated, and empowered the executor to use the rents and profits of the real estate for the purpose of the education, maintenance and support of the said children until they are twenty-one years of age or shall marry, and upon said children attaining the age of twenty-one years or upon their marriage they are to “take the property” freed from all limitations or trusts whatsoever. The property of which Mrs. Loud died seized and possessed consisted of a dwelling house and one or more vacant lots in the town of Williston, S. C., and some personal property consisting- of household -furniture, which was sold by the administrator, except a hat rack and a set of furniture which the children divided among themselves and about which there is no- dispute, and except the piano- in dispute. The beneficiaries agreed that the piano was worth $400 and objected to a sale of it for less than that sum, and fearing that it would be sold at a sacrifice if exposed to public sale they objected to such sale. The pian-o was then taken to the house of the administrator and there remained until March, 1907, when the plaintiff, who- had married E. A. Muldrow in January, 1907, wanted the piano and decided to take it at the valuation and requested that it be shipped to her at Florence, S. C., which- was done with the consent of the other beneficiary Cary. At that time Essie, Mrs. Muldrow, was about eighteen years old and Cary, who after-wards married Guy Vaughn, was about twenty years old. The plaintiff kept and used the piano- for more than two years without objection. According to the testimony $400 was a reasonable valuation of the piano-. The administrator in -his accounts has charged plaintiff with $400 the value o-f the piano and credited her with $200 one-half thereof. Both the probate and Circuit Courts concur in sustaining this as proper under the circumstances and w-e affirm their conclusion. ■ .

A court o-f equity may approve a parol partition of personal property followed by possession among minors who have reached years of discretion if the circumstances were such as would have warranted the Court to- make such division on application. There is nothing iri the circumstances of this case to show any unfairness. The plaintiff, who- had been taking instruction in music, wanted the instrument in her own home and agreed to- take it at the valuation o-f $400, which the testimony sho-ws was reasonable, and did take and use the same for more than two years before any attempt was made to turn it back to- the administrator. A just consideration of the rights o-f the other beneficiary, who might sustain loss- by a forced sale of the piano- after such lapse of time, ought to- induce the Court to- sanction the parol partition fairly made between the parties.

Both the probate court and Circuit Court construed the will as authorizing the beneficiaries to- take their shares of the estate on- their marriage, not only as to real estate, but as to personal property, and that this involved authority to exercise some choice and agreement as to division, after marriage, although before reaching- full age. There is force in this view, and no doubt the administrator felt warranted in delivering the piano to- the plaintiff after her marriage upon the agreement between the parties interested. We, however, do- not rest o-ur conclusion upon this- construction of the will.

With reference to the second question we think it was not unjust or improper to allow the administrator to charge commission on rents collected 'by him- from real estate belonging to plaintiff and her sister and not acquired under the will. It is true it was not strictly the duty o-f defendant as administrator to collect these rents, but he was concerned to carry out the wishes of the testatrix to provide for the education- o-f these young ladies-. They had no other person to look after their land, secure tenants and collect the rents, and they wished him to do- so. His services appear to -have been beneficial and the Circuit Court has commended the fidelity of the administrator to his trust. The charge is but a reasonable compensation for the services rendered and should be sanctioned.

■The judgment of the Circuit Court is affirmed.  