
    Smith McElroy, &c., v. Robt. C. Palmer, &c.
    Judgment — Appeal—Stare Decisis.
    Debt payable out of general fund, not a preferred debt.
    APPEAL PROM WASHINGTON CIRCUIT COURT.
    March 10, 1870.
   Opinion op the Court by

Judge Peters:

The court below adjudged that the .McElroys, Smith, and Spaulding’s administrator had a preferred lien on the one-third of the tract of land conveyed to Mrs. Palmer by the late Ben Hardin after Mrs. Elliott’s part was set apart to her, that being the interest of Hal Palmer derived by descent from his mother, because he, in his life-time, had become responsible to them for their debt, this preference, however, was subject to the life estate of his father, Dr. Palmer, in the land. This preference they get under the judgment first rendered, which was appealed from, and was affirmed by this court; that question, therefore, is concluded by the former adjudication.

' We see no objection to the judgment so far as Elliot and wife are concerned; they got what was adjudged to them by the former decree.

Browne, for appellants.

R. & F., W. H. Hays, for appellees.-

•Nor was it erroneous to adjudge to the McEJroys, Smith, and Spaulding’s administrator their full pro rata of their debts out of the estate of Dr. Palmer after exhausting the proceeds of Hal Palmer’s part of the land, that fund constituted no part of Dr. Palmer’s estate, but was independent of it, and after being reduced by the proceeds of Hal Palmer’s' interest in the land. They were entitled to their proportionate share of the other estate.

Perceiving, therefore, no error thus far in the judgment, it is affirmed; but the claim of T. B. and wife for the $10 per acre on the ione-fourth of the land conveyed by the late Ben Hardin to Mrs. Palmer was not a preferred debt, it was payable out of the general fund, and is payable pro rata with the other general creditors, for the error alone of giving Hardin and wife a preference for this claim oyer the general creditors the judgment is reversed, and the cause remanded for a judgment in conformity hereto, and this judgment on the cross-appeal is affirmed.

Judge Hardin not sitting.  