Gwin v. Gwin , 116 Miss. 619 ( 1917 )

Cook, P. J.,

delivered the opinion of the court.

S. D. Gwin, a resident of Holmes county, died testate in 1908, and his last will and testament was duly probated. This will was construed by this court in Gwin et al. v. Hutton et al., 100 Miss. 320, 56 So. 446, to which case reference is here made. The estate of the testator consisted of an undivided one-half interest in certain real estate. The owner of the other undivided one-half interest of this land was J. D. Gwin, son of the testator, and one of the executors and trustees named in the aforementioned will.

In the instant case J. D. Gwin filed a bill asking that the said real estate be partitioned in kind between himself and the beneficiaries of the will of S. D. Gwin, deceased. The chancellor entered a decree sustaining the prayer of this bill, appointed commissioners to make the partition as prayed for, and on the coming in of the report oi the commissioners the real estate was pardoned, and from this decree this appeal was prosecuted.

The question for our decision is thus stated in the briefs of counsel, viz.:

“Appellants desire this court to pass upon the decrees of the court below, ordering division and partition of the property owned by J. D. Gwin and the late S. D. Gwin as copartners, at the time of the death of .Capt. Gwin, and whether or not the terms and conditions contained in the last will and testament of Oapt. Gwin, as construed by this court in the case of Gwin v. Hutton, 100 Miss. 320, 56 So. 446, in any wise affect the right of J. D. Gwin as a copartner not as heir or beneficiary, to a division in kind of the joint property owned by him' and his father, at the time of his death, and which had been kept together under joint control and management with the executors and trustees until the division in kind made by the chancery court of Holmes county. Since that date-J. D. Gwin has been in exclusive possession if his divided half of the joint estate, and J. D. Gwin'and W..K. Gwin, executors. and trustees of the estate of S. D. Gwin, in exclusive possession, control, and management of the divided half of the joint property, all of which is set out in detail, item by item, in the decree of partition.”

We do not think that there is anything in the will of S. H. Gwin, deceased, which in any way limits the right of J. D. Gwin to have a partition of the lands owned by deceased, his father, and himself, as tenants in common. Quite a different question was presented in Gwin et al v. Hutton et al., supra. In that case the court was considering the estate of the testator, and it appears in this record that his estate consisted of an undivided one-half interest in the lands mentioned in the decree, and when the decree partitioning these lands was entered, the estate devised was then the lands set apart as the lands of the estate. Of course, as to the lands so named the trust imposed in the will must he carried out hy the executor.

Affirmed.