
    The Medina County National Bank v. Foreman, Admx., et al.
    (Decided November 10, 1927.)
    
      Mr. Frank Heath and Mr. John A. Weber, for plaintiff.
    
      Messrs. Beatty & Albiets,' and Mr. A. D. Davis, for defendant and cross-petitioner Jessie Foreman, individually, and as administratrix, etc.
    
      Mr. Frank Spellman, for defendant and cross-petitioner, Dora Baughman.
    
      Mr. F. W. Woods, for defendant and cross-petitioner, F. L. Harding.
    
      Mr. Edward Blythin, for .defendant and cross-petitioner, William Jacque.
   Washburn, P. J.

This is an appeal case, and the facts are not in dispute.

Dorothy M. Wall, the wife of William J. Wall, died April 3, 1923, intestate and possessed of certain real estate. She left neither issue nor descendants of issue surviving her, hut she was survived by her husband and the defendant Dora Baughman, her sister, and only other heir at law. By virtue of Section 8574, General Code, said real estate descended to her husband, William J. Wall, who made and filed the necessary affidavit transferring the title to himself.

On April 10, 1923, said William J. Wall executed and delivered a mortgage upon said premises, and in May, 1925, he executed and delivered a second mortgage on the premises. ,

In February, 1926, said William J. Wall died, without issue and leaving no widow, and without having paid said mortgage indebtdness, but leaving personal property sufficient to pay all of his debts, including the debts secured by said real estate mortgages.

Jessie Foreman, one of the defendants, is the only sister and heir at law of said William J. Wall. If said William J. Wall died intestate, said real estate descends, under Section 8577, General Code, one-half to his sister, Jessie Foreman, and one-half to Mrs. Wall’s sister, Dora Baughman.

The first question to be determined is, Did William J. Wall “die intestate” within the meaning of that term as used in Section 8577, General Code?

Long before the death of his wife, said William J. Wall duly executed a will, in which he devised all of his property to his wife. As has been said, his wife died in April, 1923, and he died in February, 1926, and after Ms death said will that had been made January 9, 1914, was admitted to probate. His sister, the defendant Jessie Foreman, was appointed administratrix.

Although Mr. Wall died leaving a will, his sole beneficiary having died before he did, said will was not operative to vest any of his property in any one. It is settled that, although leaving a will, a person may die intestate as to a part of his property, and we think that “intestate” as used in Section 8577, General Code, means without a will wMch disposes of the particular property in question; and, although William J. Wall left a will giving his property to a beneficiary who was then deceased, he died intestate as to all of his property.

The next question is, Should the administratrix of the will of said William J. Wall be ordered to pay the debts secured by said mortgages out of his personal estate, which' is ample for that purpose, and thus exonerate said real estate from the payment of said mortgage debts ?

The administratrix made application in the probate court for an order to sell said real estate to pay said mortgage debts, and that application was refused because there was ample personal property to pay said debts. Then this suit was begun by one of the mortgagors to foreclose his mortgage, and all of the interested persons became parties, and the issue was tried in the lower court as to whether said mortgage debt should be paid from the personal estate or from the real estate mortgaged. The question is important because, after the payment of debts, all of the personal estate of Mr. Wall goes to his sister, Jessie Foreman, and his real estate descends one-half to Jessie Foreman and one-half to Dora Banghman, his wife’s sister.

When said William J. Wall inherited said real estate from his wife, under Section 8574, General Code, he became the owner thereof, and had a right to sell or dispose of it during his life, .or by will, as he saw fit, and Section 8577, General Code, operated and controlled the descent only because he did not dispose of said real estate either during his life or by will. He could have rendered Section 8577, General Code, inoperative by deeding the property to a third person and having it reconveyed to him, although such transactions were carried through merely for the purpose of rendering such statute inoperative, but we do not think that the mortgaging of the real estate should be considered as a sale or conveyance of an interest in said real estate represented by the amount of the mortgage. He did not thereby change the legal title to the real estate, nor convert any part of the real estate into personalty; he simply created a personal debt and secured it by mortgage. The debt remained his personal debt, the same as his other debts, and we think the usual rule should apply that, where lands of a decedent descend subject to a mortgage created by the decedent, his personal estate is primarily liable for the discharge of the debt secured by said mortgage, and the heirs are entitled to have the property exonerated from the lien of the mortgage debt by application of the personal estate to its payment.

Our statutes are declaratory of this common-law rule . Section 10774, General Code, requires an executor or administrator to bring proceedings to sell real estate as soon'as it is found that the personal estate is insufficient to pay “all the debts of the deceased;” Section 10786 expresses the probate court to order such sale; and Section 10582 provides that “the undevised real estate first shall be chargeáble with the debts,” unless by the terms of the will it is otherwise provided.

This well-established principle of law answers the second question submitted to us for determination by the issues in this case. The common pleas court was therefore right in finding and ordering that the real estate described in plaintiff’s petition should be exonerated from the payment of the debts secured by said mortgages, and that the same should be paid by the defendant Jessie Foreman, administratrix, from the personal property belonging to the estate of William J. Wall, and a like entry may be made in this court.

Decree accordingly.

Funk and Pardee, JJ., concur.  