
    Philpot et al. v. Webb.
    Descent — Action.—In 1859 a man died, leaving a widow and children. One-third of his real estate descended to his widow. She and B, in 1860, executed a joint and several promissory note for the payment to O of a sum of money. Afterwards she and B intermarried. She then died, the children by her former husband surviving her. B then became insolvent. C sued the children by the former husband to subject the interest which had descended to their mother, as aforesaid, to the payment of said note. The children claimed that, by reason of her subsequent marriage, she took but a life estate therein, and that, therefore, it was not subject to sale for payment of said note.
    
      Held, That, under the circumstances, she took a third in fee, and that it was liable for the payment of her debts, and said action would lie.
    APPEAL from the Spencer Common Pleas.
    
      L. Q. $ T. F. DeBruler and David T. Laird, for the appellants.
    
      H. G. Barkioell and O. F. Stirman, for the appellee.
   Per Curiam.

Henry G. Waggoner died in 1859, then owning certain real estate, and he left surviving him Matilda Waggoner, his widow, and Eliza J. Philpot and several others,' his children by said Matilda, being his heirs at law.

Afterward,in September, 1860, said Matilda executed, jointly and severally, with William Henderson, two promissory notes, amounting in the aggregate to 866 dollars and 66 cents, payable to George W. Webb. Later, to-wit, in November, 1860, the widow, Matilda, intermarried with said Henderson; and, on the 20th of March following, (1861), she died, leaving- surviving her no children by her second husband.

On the 6th of June, 1862, Webb, the payee of the above mentioned notes, instituted this suit to enforce payment of them out of the interest of said Matilda in the real estate of her first husband, she having left no other property, and Henderson being insolvent, The suit is against her children by her first husband, the heirs of Henry G. Waggoner, deceased. It is alleged that there is no administrator.

The Court held that one-third of the real estate of her first husband, Waggoner, descended to the said Matilda, in fee; that her subsequent marriage did not divest it; and that at her death it descended to her heirs, liable to be sold for debtB contracted by her.

Concurring in the opinion of the Court below, we affirm the judgment, with costs.

The judgment is affirmed, with costs.  