The assignments of error are sufficient to raise the correctness of the rulings and charges of the judge below (1) upon the extent of the liability of the estate of W. F. Grant to plaintiffs; (2) the right of the defendants to offset the expenses of maintenance and education of the plaintiffs, so far as paid from the property of the estate; (3) the effect of the homestead rights of the father (J. F. Grant) of plaintiffs upon the land as affecting a suit for the rents of the same land, and against W. F. Grant’s estate; (4) the right to compensation for improvements made during the term for which rents, etc., were claimed, and upon the lands received in partition by plaintiffs; (5) limitation; (6) admitting parol evidence of date of purchase of lands, etc.
It will not be attempted to do more than announce the points held in deciding the case.
1. It is admitted in the pleadings, and in the testimony, that the property of the plaintiffs was in fact held by the firm, or partnership, composed of W. F. & J. F. Grant. While the effect of the wife’s death upon the community property is to vest at once in her heirs the legal estate to the extent of her interest, such death, as between the original partners, would not dissolve the partnership. If the firm did, as alleged and proved, take and hold the property, the liability for hire and rents would follow. This liability would arise independent of the rights as between the members of the firm upon a settlement of the partnership.
2. If the firm by their acts in using the property became chargeable as trustees, then as such, when called to account, as in this suit, they should be allowed all legal and equitable offsets and credits. It appears that aside from the firm business, the father of the plaintiffs had no property whatever; no capital nor income. The firm as such cannot be chargeable with the maintenance or education of chil*386dren. There can be no relationship imposing such duty upon the firm. A court would, however, enforce from the income, or the property used by the firm as trustees, an allowance sufficient for their proper support and education. As by the facts alleged and proven in this case, an allowance could come from no other source, the firm could apply the income to that purpose.
“What the court will allow upon suit may be done by the trustee without suit.” Perry on Trusts, sec. 715. “So, also, any disbursements which the court would order the trustee to make will be allowed to the trustee if he makes them ■without an order.” . . . “So trustees may expend moneys for the support of an infant, if the court shall subsequently approve of the expenditure” (as reasonable, etc.).
We therefore consider the court in error in refusing the right to defendants to offset the necessary expenses, etc., of the plaintiffs while minors. They had drawn such support from the firm; they should not be allowed to take it in their education and have judgment for it. Spending it once, upon the court being satisfied that such expenditure was reasonable in amount, and proper in kind, it should be approved.
3. So also of the improvements. In civil cases there is no rule of law imposing such burdens upon litigants, as are by the charges upon this subject, as given by the court, imposed upon the defendants, to establish the facts alleged with reference to the improvements.
4. As to the homestead rights, the case is so presented that it is not clear that any error could result from the rule given by the court in the charge.
While it may result that actual homestead rights would be created and protected by the acts of the parties as given, still the pleadings make the case for decision, and we cannot look beyond them. While the constitution and laws apply to the residence of a family upon lands in which the head of the family has an estate in fee, whether as tenant in common dr in severalty, the character of homestead, and *387afford it protection when attacked by creditors, still the head of the family may, in his dealing with others under the homestead laws, disregard that quality in his residence.
So, in this case, if the identity of the parties as owners of property, as heads of families, as fathers of children, has been lost, and such loss of identity recognized by all parties litigating, as shown by their pleadings, then it would follow that, in determining the rights of the parties, as minors, calling a partnership firm, occupying the enforced position of trustees, to account, the rights of each would be ascertained by allowing to each only what the law gives to parties occupying the characters and conditions so assumed and acknowledged. As a firm, the individuals could have no homestead rights, and the occupation by J. F. Grant of a part of the firm lands could not be charged in this suit against plaintiffs.
5. Under the facts as developed on the trial of the case, the two years’ limitation had not run at the filing of the suit. It is held that, it not appearing when letters were granted, that one year additional was added to the time of the statute after the death of W. F. Grant, and that the presentation within that time, and suit followed within ninety days, would be within the limitation.
It is not, therefore, necessary to notice the effect of the constitutional exemptions in favor of minors and married women.
6. There was no error in allowing parol evidence of the date of the acquisition of the thirty acres, Benner tract. The subsequently executed deed would relate to the equitable acquisition, if such equity was shown.
7. We are inclined to think that the law, applied to the facts, would fix a homestead of two hundred acres on the firm lands, rent of which ought not to have been allowed as against W. F. Grant’s estate. In such event, however, the obligation of the" father for the support of his children would become active, and no offset should be allowed against any just claim of the plaintiffs for such support.
*388[Opinion delivered June 7, 1880.]8. It is not necessary to act upon the question of classifying the claim.
For the errors indicated, the judgment should be reversed.
Eevebsed and eemanded.