
    Thomas A. Wood, Administrator of David Butler, deceased, v. Barak Butler and others.
    1. In a proceeding by an administrator for the sale of lands to pay debts, the answer of a guardian ad litem for minor heirs, alleging his ignorance of the matters contained in the petition, and praying that the rights of his wards may be protected, has the effect of a general denial, and requires proof of all the material averments in the administrator’s petition.
    2. It is an abuse of the provisions of the statute allowing such proceedings, to institute them for the mere purpose of settling disputes regarding the title of lands.
    3. Where parties other than the widow and heirs are made defendants in such proceeding, and the petition asks relief against them touching the title of the land sought to be sold, a dismissal of such petition on hearing will be no bar to a future action by the widow or heirs, against such other defendants, to recover the land, or to establish their title thereto.
    This was a petition by the administrator to sell lands. It came by appeal from the Common Pleas into the District Court, where it was dismissed upon hearing; and the administrator now claims that in dismissing the petition, and in overruling his motion for a new trial, the District Court erred.
    The original petition alleges that there is an outstanding debt of the estate, namely, an allowance made by the appraisers to the widow, to the amount of two hundred dollars, for the payment of which there are no personal assets, and asks an order for the sale of decedent’s equity in eighty acres of land, purchased by him‘from his father, Barak Butler. It alleges that Barak refuses to execute the contract of purchase, and has conveyed sixty acres of the 'land to other persons. Barak and those to whom be has so conveyed, as well as the widow and heirs of David Butler, are made defendants, and the court is asked to adjudge these conveyances of Barak void, and to declare the equitable title to the land to be in the widow and heirs, subject to the payment of debts of the estate, and for an order to sell the land so conveyed.
    Barak Butler, and the defendants claiming under his conveyances, put in answers denying the equity or right of -decedent to the sixty acres so conveyed; and on behalf of the heirs of decedent, their guardian ad litem answered that he was ignorant of the matters set forth in the petition, .and prayed that the rights of his wards might be protected.
    A bill of exceptions setting forth all the testimony forms part of the record. This testimony relates almost exclusively to the controversy regarding the title to the land. So far as it relates to the case proper, namely, the necessity of selling land to pay the debts of the estate, it shows these facts: The death of decedent took place in 1861. He left a considerable amount of personal property, including “three good horses, a new two-horse wagon, three cows, and fifty sheep;” also crops of corn, hay, oats, and potatoes; but the value of this property is not shown. This property was converted by the widow to her own use, .and all the debts of the estate were paid by Barak Butler soon after the death of the deceased. No administration was taken on the estate until 1870, when a controversy having arisen about the title to the land, the plaintiff in error 'took out letters of administration, and an allowance claimed to be in the sum of two hundred dollars was made to the widow for her year’s support, which is now in fact the only claim against the estate. Indeed, there is no direct evidence that this allowance was made. In the petition it is .alleged that such'an allowance was made; and the fact is admitted in the answer of Barak Butler, but it is not admitted in the answer of guardian ad litem; and the only evidence of the fact of such allowance is the testimony of odc of the appraisers, that in making “the allowance to the widow,” deduction was made for the property received by her.
    
      Olds & Dickey, for the motion.
    
      Gurley & Dalrymple, contra.
   Welch, J.

In this proceeding the administrator represents the creditors of David Butler, deceased, and we-fail to see that any of his bona fide creditors are shown to-be prejudiced by the judgment of the District Court. It is obvious on the face of the record, that as a proceeding for the statutory purpose, namely, that of selling land to pay bona fide debts of the estate, it was colorable merely, and that its real object was to obtain or establish for the widow and heirs their title to the land in controversy. Such a proceeding is an abuse of the provisions of the statute, and. can not be sustained where it is not clearly shown that there was an actual necessity to sell lands for the payment of bona fide debts of the estate. No such necessity appears in-the case. The answer of the guardian ad litem, has the-effect of a general denial, and requires proof of all the-material facts stated in the petition. The petition avers-that there are outstanding debts to the amount of two hundred dollars. The proof is that all the debts proper were paid. The allegation that an allowance of two hundred dollars was made to the widow, and that it remains-due and unpaid, is neither admitted by the heirs nor proved by the testimony. The most that can be learned, or rather inferred from the testimony, is that some allowance, at sometime, was made to the widow. If it be true, as assumed, that it was an allowance for two hundred dollars, in addition to the personal property received by her, made nine years after David’s death, there is ground for suspecting that it was made merely to enable the administrator to bring this-suit for the benefit of the heirs, and not for the benefit of the creditors of the estate.

We think, therefore, that the court did not err in dismissing the plaintiffs’ petition. And it matters not if it be-true, as is to be inferred from the argument of counsel, that the court so decided the case upon the merits of the controversy in regard to the title of the land, and not because there was no sufficient proof of bona fide debts. If that be so, and the court erred in its decision in that behalf, it was an error without prejudice, and only shows that the court rendered a right judgment for a wrong reason; because the judgment will be no bar to any future action by the widow or heirs, to recover the land, or to assert their title thereto.

Motion overruled.  