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pleading, it is not necessary, nor, indeed, proper, to incumber the record with useless repetitions.

The controlling question in the case is as to the construction of the will of Gabriel Hockstedler; the principal controversy being as to the nature of the interest it vests in the appellee David Hockstedler. So far as the interest of David Hockstedler is concerned, it is only necessary to say that the will of his father, Gabriel Hockstedler, devises property and money to his wife, and then proceeds thus: “The remainder of my property I give and bequeath to each of my five children, John G., Abigail, Eli T., David, and Gabriel G., or their children, heirs, or executors, to be equally divided among them; consideration, however, is to be taken of the amount they may have received during my life-time, as charged in a book kept by me, and in the following manner, to-wit: Those who have received the least shall be first made equal to those that are next higher. Should, however, there be a deficiency to raise them all to an equality, then they shall wait until after the death of my beloved wife, Maria, when that which may be left shall be divided in the same way. If there still be a deficiency to make them equal, then those of my children who have received too much during my life-time to make them all equal shall be required to pay back such amounts as may make them all equal. Should my children, together with my beloved wife, Maria, not be able to come to a mutual understanding in reference to a division of the property falling to them, within the period of six months from my decease, then it shall be sold and turned into money, and be divided as above described. Until it is sold or divided, it shall be under the supervision of my executors, the income to be divided as above described. In case when and after the death of my wife, if a dividend has been effected as directed above, and there should be anything left after death of what she has received from my estate, it is my will that my children proceed to divide equally, exactly as in the first instance. It is my will and devise that the amount yet falling due to my beloved son David shall be under the immediate supervision of my other son Eli T., who is to give bond and security of double the amount, and who is to loan it on real-estate security, first mortgage, on property of one-third value more than the money loaned. The interest thereof is to be paid to my son David, or that the said Eli T., with the consent of said David, may invest the same, or any part thereof, in real estate, the deed to be made to the lawful heirs of my son David. It is my will that nothing herein before mentioned shall be otherwise understood than that the property otherwise falling to my beloved son David is bequeathed to his lawful heirs, but that he shall have the benefit of all the interest or proceeds thereof as long as he shall live, and, after his natural death, the principal shall fall to his lawful heirs.”

It is conceded by the appellants' counsel that the clause of the will devising to the appellee David Hockstedler, and his sister and brothers, the estate in possession and in remainder which is created for them, does, under the rule in Shelley's Case, devise an estate in fee. We think the authorities require this concession; for where a life-estate is created in a devisee named, and the same will devises the remainder to devisees who are named, and their lawful heirs, they (the devisees) take an estate in fee. Shimer v. Mann, 99 Ind. 192, and cases cited; Biggs v. McCarty, 86 Ind. 363; Gonzales v. Barton, 45 Ind. 296; McCray v. Lipp, 35 Ind. 116; Andrews v. Spurlin, 35 Ind. 262; Doe v. Jackman, 5 Ind. 285; Washb. Real Prop. 596; Prest. Est. 271.

It is, however, contended that notwithstanding the fact that, if the provisions of the will referred to stood alone, the appellees would take an estate in fee, the later provisions of the will cut down the estate to one for life. We do not doubt that where the words of the will clearly show that the word “heirs” was used as meaning children, that the courts will assign it that meaning. Shimer v. Mann, supra; Ridgeway v. Lanphear, 99 Ind. 251; Brumfield v. Drook, 101 Ind. 190. But the word "heirs," as Mr. Preston

.

says, “is a powerful one,” and it must be given its legal force and effect, unless the words of the will clearly assign it a different signification. Shimer v. Mann, supra, and cases cited. The inquiry, therefore, is, do the words of the will change the meaning affixed to the word "heirs” by a long line of decisions, extending back through the centuries ?

In our opinion, it cannot be said of this will that its language does change the legal meaning of the word “heirs,” for we cannot reach that conclusion without violating a settled rule of law. The rule to which we refer is thus stated in the case of Bailey v. Sanger, ante, 159, November 19, 1886: “Where an interest or estate is given in one clause of a will in clear and decisive terms, such interest or estate cannot be taken away or cut down by raising a doubt upon the extent, meaning, and application of a subsequent clause of the will, nor by inference therefrom, nor by any subsequent words that are not as clear and decisive as the words of the clause giving the interest or estate. Thornhill v. Hall, 2 Clark & F. 22; Collins v. Collins, 40 Ohio St. 353."

The later provisions of the will are by no means as clear and decisive as the earlier, for, in the earlier, the appropriate words to create a fee are employed, and the devisee is named in direct connection with persons to whom a fee is indisputably granted. It can not be doubted that estates in fee were devised to the sister and brothers of David Hockstedler, and, as he is classed with them, and precisely the same words applied to him as to them, it must surely follow that his estate is the same as theirs. It cannot be possible that he took one estate and they another.

We do not in the slightest degree impugn the soundness of the rule that it is the intention of the testator that must govern the construction of a will; but this intention, as all the authorities agree, must be the intention that appears upon the application of settled principles of law. It may well be doubted whether the later provisions of the will apply at all to the land devised in the earlier part of the instrument to David Hockstedler. It is probable that the true construction of the later provisions of the will is that they apply to other property than the land devised to him and his sister and brothers. The term “principal,” as used in the will, cannot, with propriety, be deemed to mean land, nor can the terins, “he shall have the benefit of all the interest and proceeds thereof,” be justly construed as referring to land. All these terms may, with propriety, be construed to refer to money that in equalizing the advancements may be found due to David. This construction seems to be supported by the principal provisions of the will, which precedes the terms referred to, for it is written: “It is my will and devise that the amount yet falling to my beloved son David shall be under the supervision of my son Eli T., who is to loan it on real estate." This provision can hardly be construed otherwise than as referring to the amount found due David on equalizing the advancements, for it is difficult to perceive how the phrase, “the amount yet falling due to my son David,” can be assigned any other meaning. It is enough, however, to declare that the later provisions of the will are not as clear and decisive as those which devise to David an estate in fee, and, as they are not, they cannot take away or cut down the estate devised in the earlier provisions of the will. Bailey v. Sanger, supra.

Our conclusion is that the will devised to David Hockstedler the fee in the land, as it did to his sister and brother joined with him in the clause of the will which devised to them their respective interests. A devisee of land, vested with an immediate estate, or an estate in remainder, is not a residuary legatee; and the cases of Highnote v. White, 67 Ind. 596, and Gould v. Steyer, 75 Ind. 50, have no application to such a case. The particular estate in this instance, so far as there is an interest in remainder, is in the widow; hut the devisees have, even in that estate, a vested remainder, which they can dispose of without the intervention of the executors. So far as the de

vise is of a present interest in possession, there can, of course, be no question as to the right of disposition. The only case in which the executors can take the land to the exclusion of the heir or devisee is when it is needed for the payment of the testator's debts. Judgment affirmed.

(108 Ind. 579)

DUNCAN, Adm'r, o. GAINEY and others.

(Supreme Court of Indiana. December 21, 1886.) 1. APPEAL-DECEDENT'S ESTATE-REV. ST. IND. 1881, 22455—NOTICE.

Although the better practice is to require notice of an application for leave to perfect an appeal from a decision affecting a decedent's estate after the time given by section 2455, Rev. St. Ind. 1881, yet, both parties having been brought into court, the supreme court have concluded, in this case, to overrule the motion to

dismiss the appeal. 2. EXECUTORS AND ADMINISTRATORS—UNAUTHORIZED SALE-RIGHTS OF PURCHASER-SUB

ROGATION.

Where an executor or administrator attempts to sell real estate of his decedent without an order of court, and without any provision in the will authorizing him so to do, the property may again be sold, under proper proceedings, to pay the debts for which it was and is liable; but where, by special agreement with the executor and widow, the money paid by the purchaser at the unauthorized sale was applied on debts against the estate, such purchaser is entitled to be subrogated to all the rights of the original holders of such claims, but he is not entitled to a prior

lien therefor over other debts of the same class. Appeal from circuit court, Lawrence county.

Friedley & Pearson, for appellant. Dunn & Dunn and N. Crooke, for appellees.

NIBLACK, J. The complaint in this case averred that one John P. Gainey was, in his life-time, the owner, among other things, of two 40-acre tracts of land in Lawrence county, and of a 160-acre tract of land in the county of Daviess; that on the twenty-fourth day of July, 1871, the said Gainey executed and published his last will and testament, by which he devised and bequeathed his Lawrence county lands, and some personal property, to his daughter, Elizabeth Gray, and likewise devised and bequeathed the Daviess county lands, and nearly all of his remaining personal property, to his wife, Louisa J. Gainey, charging the property so devised and bequeathed to his wife with the payment of his debts, funeral expenses, and all other claims against his estate; that Gainey, the testator, died on the eighth day of September, 1871, leaving his said will, containing some bequests to other persons, in full force, the same being soon thereafter admitted to probate; that the personal estate of the decedent was insufficient to pay his debts and the charges against his estate; that letters of administration, with the will annexed, were first issued to Edmond B. Gainey, who was afterwards removed; that Oliver P. Anderson succeeded the said Edmond B. Gainey in the administration of said estate, but that he had after a time resigned without finally settling the estate; that · letters of administration upon the estate remaining unadministered, and with the will annexed, had been issued to the petitioner and plaintiff, Coleman Duncan. The prayer of the complaint was that the Daviess county lands should be ordered and decreed to be sold for the payment of the remaining debts and unpaid charges against the decedent's estate. The widow and other devisees and legatees under the will were made defendants, as were Mathew Woods, John Woods, and Abraham K. Cunningham, who were alleged to have acquired some interest in the lands in controversy. These last-named defendants answered in an elaborate series of paragraphs, to some of which demurrers were sustained, and issues were formed upon those held to be sufficient. The widow and the other devisees and legatees made no defense.

The circuit court made a special finding of the facts adjudged to have been proven at the trial: First. That the said John P. Gainey died testate at the time named in the complaint. Second. That certain property, including the real estate in question, had been devised and bequeathed by him to his widow, Louisa J. Gainey, as alleged, subject to an express direction that his debts, funeral expenses, and other charges against his estate should be paid out of the property therein devised to his wife. Third. That the decedent left the said Louisa J. Gainey and others, naming them, as his only heirs at law, devisees, and legatees; that Edmond B. Gainey was first appointed administrator, with the will annexed, and that, while acting as such, he paid a part of the indebtedness against the decedent's estate; that he was succeeded as such administrator by Oliver P. Anderson, who sued him and his sureties on his bond, and obtained a judgment for an alleged waste of the assets of the estate; that afterwards Anderson resigned, and the plaintiff, Coleman Duncan, was appointed his successor; that the plaintiff had collected the judgment recovered as above by Anderson, and had paid out the proceeds on debts against the estate; that there remained no personal property or assets of a personal character, belonging to the estate; that the debts and charges against the estate still remaining unpaid amounted to the aggregate sum of $1,273.65; that while the said Edmond B. Gainey was acting as the administrator of the estate, that is to say, in April, 1872, he, without any order of court, sold the Daviess county lands to the defendant Mathew Woods for the sum of $1,400, and caused the same to be conveyed to him by a warranty deed, executed by the said Louisa J. Gainey as the devisee and supposed owner thereof; that the said Mathew Woods subsequently conveyed one-half of said lands to the defendant Abraham K. Cunningham; that the entire sum of $1,400 paid by the said Mathew Woods for the lands so purchased by him had been paid out upon, and applied in payment of, debts against the estate of the decedent; that $950 of said amount was, under the direction of the administrator, paid out personally by Mathew Woods on such claims, specifying the particular claims so paid by him; that the said Mathew Woods had made improvements on that part of the lands still retained by him, of the value of $500; that such part of said land had been in his possession for 12 years, and was of the rental value of $30 per year; that the said Cunningham had made improvements on that part of the lands purchased by him, of the value of $400; that he had been in possession for 12 years, and that the rental value of his part of such lands was $30 per year.

Upon this finding of the facts, the circuit court came to the conclusion that the real estate so in the possession of the said Woods and Cunningham, respectively, was liable to be sold, and ought to be so sold, for the payment of the debts and charges still outstanding against the estate of John P. Gainey, the decedent, but that said real estate was subject to a prior lien in favor of the said Woods and Cunningham for the sum of $1,450, which ought to be first paid out of the proceeds of such real estate when the same should be sold. Over exceptions to the conclusions of law thus stated, the real estate referred to was ordered to be sold by the plaintiff, and the proceeds applied in accordance with the conclusions of law as stated.

This appeal was not taken within the time limited by section 2455, Rev. St. 1881, having reference to appeals from decisions affecting decedents'estates, but was taken, under leave afterwards granted by this court, upon the ex parte application of Duncan, the plaintiff below. Since the appeal was perfected under the leave thus granted, the appellees have moved to dismiss the appeal, upon the ground that they were not notified of the appellant's application for leave to take it, and hence that they had no opportunity of resisting such application, as they probably might have done successfully; citing the case of Browning v. McCracken, 97 Ind. 279, as holding that they were entitled to such notice. Doubtless, the better practice is to require notice of such applications when it is practicable to do so; but as both parties have, by reason of this appeal, been brought into court, we feel constrained to treat the order granting the authority to appeal as an adjudicated matter; and, in consequence, to overrule the motion to dismiss the appeal. We nevertheless regard the rule of practice suggested by the case of Browning v. McCracken as being the correct general rule.

As has been made to appear, the real estate involved in this cause was not, in any manner, devised to the executor. Nor was any authority conferred on the executor over such real estate greater than that which the law devolved upon him as the personal representative of the decedent in the administration of his estate. The provision of the will requiring the payment of the debts, funeral expenses, and other charges against the decedent's estate, to be made “out of the property devised to the widow, was a mere marshaling of the assets of the estate as between the widow and the other devisees and legatees under the will, and did not create any specific lien against the widow's share for the payment of any particular debt, or class of debts. Nor did it release the property left to the other devisees and legatees from ultimate sale for the payment of debts and charges against the estate, in the event that the property devised to the widow should prove to be insufficient for their payment. The law does not, nor did not at the time of the death of John P. Gainey, confer upon an executor or administrator any authority to şell and convey the real estate of his decedent, except by order of the proper court, in the absence of a testamentary provision authorizing him to so sell and convey such real estate. Edwards v. Haverstick, 47 Ind. 138; Hankins v. Kimball, 57 Ind. 42; Kidwell v. Kidwell, 84 Ind. 224.

Even when real estate is specifically devised to be sold for the payment of debts it is necessary to obtain an order of court for its sale, unless, by the terms of the will, a different course of proceeding is prescribed. 2 Rev. St. 1876, 529, $S 92–94; Rev. St. 1881, $$ 2332, 2359-2361. Consequently the sale of the real estate made to Mathew Woods in this case was not a sale in accordance with any authority conferred either by the decedent's will, or any law of this state, and hence did not discharge the real estate from liability to be again sold, under proper legal proceedings for the payment of the debts for which it was, from the first, liable to be sold, both under the will and under the law.

Woods, under the conveyance to him, simply assumed the same relations to the land which the widow had previously occupied; that is, he became its owner, subject to its liability to be sold, under appropriate legal proceedings, for the payment of the debts and other charges against the estate. The purchase money paid by Woods did not become assets in the hands of the administrator. Hankins v. Kimball, supra. The amount paid by him was only applied on debts against the estate under a special arrangement with the widow and the administrator. This made him the equitable owner of the debts thus paid by his money and property, and entitled him to be subrogated to all the rights of the original holders of such debts, according to their respective priorities, in the same manner, and to the same extent, that the administrator would have been if he had advanced and used his own money in the payment of the debts in question. Sheld. Subr. § 202.

Sheld. Subr. § 202. But we know of no principle upon which Woods, or his assignee in part, Cunningham, can be held to have acquired a prior lien for the payment of the debts to which they are so entitled to be subrogated over other debts of the estate of the same class.

The inevitable inference is that the circuit court erred in its conclusion of law that Woods and Cunningham had acquired such a prior lien. The judgment is reversed, at the costs of Mathew Woods, and the appellee Cunningham, and the cause is remanded to the court below, with instructions to restate its conclusions of law in accordance with this opinion, and to render judgment accordingly.

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