
    No. 717
    LANDIS, et v. SCHERER
    Ohio Appeals, 6th Dist., Lucas Co.
    No. 1906.
    Decided July 2, 1927.
    485. EXECUTORS AND ADMINISTRATORS — 473. Estates — 1. Decedent’s land shall not be ordered partitioned within one year from his death unless debts have been paid or secured to be paid or personal property is insufficient to pay them.
    2. Where bond has been given in accordance with 10785 GC., it takes the place of the real estate and administrator has no further right to proceed with sale.
    Error to Common Pleas.
    Judgment affirmed.
    First Publication of this Opinion.
    Attorneys — A. A. Swartz for Landis; B. F. James and George W. Millard for Scherer; all of Toledo.
   RICHARDS, J.

This action was brought to partition certain land left by Henry S. Landis, who died intestate. Several pleadings were filed, the last one being a third amended petition which was met by demurrer filed by the defendants. The trial court overruled the demurrer, and, the defendants not desiring to plead further, a decree of partition was rendered in favor of the plaintiff, from which decree an appeal has been taken to this court.

The only question involved in- this case is the right of the plaintiff to partition, in an action brought within one year after the death of the owner of the real estate, the defendants, including the administrator, contending that it is necessary for the lands to be sold by the administrator in order to pay debts of the decedent.

The plaintiff avers that the personal estate, belonging to the decedent at his death, was more than sufficient to pay and discharge all the indebtedness against his estate and that; after this action was brought, an administrator was appointed by the probate court who filed a petition in 'that court for the purpose of selling the real estate to pay the debts. The plaintiff avers that, after the institution of this action by the administrator, this1 plaintiff, pursuant to 10785 GC., filed, in the probate court, his bond in the sum of $5,000 which was approved by the court, and that, after such bond was filed, the court proceeded no further with the petition to sell said real estate.

On the death of the intestate his real estate passed directly to his heirs although it is true that the administrator is given the right, by statute, to sell it when it is necessary for the purpose of paying debts and the allowance made to the widow. If no debts or obligations are left by the intestate, the administrator has no right in the real estate and no power to cause a sale of the same in order to pay debts. Even if there are debts left by the intestate, if any person interested in the estate has given a bond in acordance with the requirements of the statute and said bond has been approved by. the court it takes the place of the real estate and the ■ administrator , has no further right to proceed and effect its sale.

' Section 12028 is in harmony with the section already cited, in providing that a decedent’s land shall not be ordered partitioned within one year from his death unless the debts have been paid or secured to be paid or the personal porperty of the deceased is sufficient to pay them.

Judgment affirmed.

(Williams and Lloyd, JJ., concur.)  