L. Holliday and others v. R. J. White and another, 33 Tex. 447

Walker, J. The plaintiffs brought their action under the statute for partition, asking an account for mesne profits, and charging their co-tenant with waste. They count for title upon a deed from their ancestor, A. Gr. Scogin, dated January 11. 3861, to his wife, Sarah M. Scogin, and the plaintiffs, and their co-grantee, William B. Scogin, who has, since the date of the conveyance, died intestate, without surviving wife or heirs of his body. After the execution of the deed by Scogin to his wife and children, on the twenty-fourth day of July, 1863, A. Gr. Scogin and his wife, Sarah M.

Scogin, deeded the land in controversy to the appellee, Richard ,J. White. There is no controversy about the due execution and record of both the deeds. Scogin put his deed of January 11,1861, on record, and this mast be held to be a good constructive delivery, without which, it could not take effect, either as a deed inter vivos per verba in presentí, or as a donatio causa mortis. (8 Ohio, S. R., 239.) The defendants demurred to the plaintiffs’ title, as set forth in their petition.

The court sustained the demurrer, giving the judgment of respondeat ouster, and from this judgment the appeal is taken, and we are asked to settle the rights of the parties under the deeds of January 11, 1861, and July 21, 1863. In Scogin’s deed to his wife and children, he expressly declares that he makes the grant of land and of- slaves as an advancement to them. The term advancement is an apt term, of legal science. The deed is artistically drawn, and it carries both real and personal property.

An advancement is a payment or appropriation of money or property, or a settlement of real estate, made by a parent to or for a child, in advance or anticipation of the distributive share to which such .child would be entitled after the death of the parent, and with a view to a portion or settlement in life. (2 Blackstone Com., 517; Lovelace on Wills, 140.) It is a giving, in whole or in part, of what it is supposed a child may be entitled to after the death of the parent, or the party who makes the advancement. (See C. J. Parker, 17 Mass., 586, 588.) An advancement may be made post nuptial to the wife.

Upon a careful examination of the deed from Scogin to his wife and children, we are clearly of opinion that it must be construed as a deed inter vivos, and that it took effect to vest the fee in the appellants on delivery. The wife tock a life estate in one-sixth part of the land under this deed. The children took a vested remainder. The jus accrescendi was to the children, so far as her share was concerned upon her death. And by the death of Wm. B. Scogin, her son, she took a sixth

part in fee. These interests she has deeded to White, the appellee; and to this extent, and no more, is he interested in the land. We are unable to apply the doctrine of executory devises to the deed of January 11, 1861, and must therefore settle the rights of the parties upon the contrary view already presented. The appellants are entitled to partition, and to an account for mesne profits. Each of the surviving children of A. G. Scogin will ho entitled to an equal share of said estate, after first giving to the appellee, R. J. White, a life estate for Mrs. Sarah M.

Scogin’s life in one-sixth part of the estate, and the fee to that portion which she inherited at the death of her son, W. B. Scogin, and it will make no difference whether the father, A. G. Scogin, was living at the time of his son’s death or not, as his interest, whatever it might have been, passed under his deed to White. The judgment of the district court is reversed and the cause remanded, to be proceeded in in accordance with this opinion. Reversed and remanded.