
    Robinson adm'r. vs. Robinson.
    Where a father placed a son in possession of a tract of land, with the intention that he should have the use of it as a gift, such a state of circumstances excludes the idea of a contract for the payment of rent; yet where the father, under such a state of things, died intestate, the use and occupation of the land should be charged against the son in the distribution of the estate as an advancement.
    This bill was filed in the Chancery Court at Shelbyville, by Joseph Robinson, administrator of John Robinson, deceased, against David Robinson and others, the distributees of said John Robinson.
    John Robinson gave specific articles of property and sums of money to his children, at various times, and placed his son David Robinson in possession of a tract of land, containing some fifty acres of cleared land on it, about ten years before his death, intending to let him have the use of it, but retaining the title in himself. This was done to prevent it being sacrificed to pay debts which he might create.
    John Robinson died intestate, without having made any title to his son David., After the death of the intestate, David kept possession, and this bill was filed to ascertain the extent of the advancements, and to distribute the surplus amongst those entitled.
    
      The presiding Chancellor, Ridley, heard the case on bill, answer, replication and proof, and charged D. Robinson with the value of the premises during the entire period he had possession, as an advancement to him by deceased.
    D. Robinson alone of the defendants appealed.
    
      Frierson, for the complainant.
    
      Wisener, for the defendant.
   GreeN, J.

delivered the opinion of the court.

This is a bill brought by Joseph Robinson, administrator of John Robinson, deceased, against all the distributees of the estate, for the purpose of ascertaining the advancements to them by the intestate; so as that the administrator may distribute the surplus of the estate among them according to law.

The case has come up here, on one item charged as an advancement to David Robinson. His father placed him in possession of a tract of land, having about forty acres cleared upon it. It was intended for his use, and that of his children; the title was not given to him, because the father was afraid he would waste the property. If this were a direct claim for rent by the administrator, it could not be maintained, because, if a father or other person put a relative into possession of land, intending either the land or its use, as a gift, or benefit, or loan or advancement to the party so let into possession, such circumstance will repel the idea of a contract express or implied for the payment of rent. Ridley vs. McNairy, 2 Hump. R. But this is not a claim by the administrator against David Robinson on the ground of indebtedness to him, or to the intestate for rent. It is a proceeding in which it is insisted, that the rent was in fact a loan or benefit given by the intestate, and to be considered of in that light in an equitable adjustment of advancements among the distributees. But so much of the charge for rent, as arises from the possession of the land, after the death of the intestate, is clearly wrong, and was erroneously allowed.

Upon that event taking place, the possessor, David Robinson, would become liable to the new owners, the heirs, for use and occupation.

Let the Clerk and Master enquire how much was so erroneously allowed, and to that extent the decree will be reformed.  