
    Shipp, administrator, v. Gibbs & Spence.
    1. “ I give and bequeath to my beloved wife, Susan Eckles, the house and lot known as the Eckles house, where I now live, embracing the stables and lot, said lot adjoining Doctor Gibbs and E. Nebbiit, together with all the household and kitchen furniture thereto belonging. I also give to my said wife Susan one thousand dollars, all of which I give and bequeath to her, my said wife, during her natural life. After her decease, it is my will that the property and money which I have here willed to her, or whatever of the same so willed that may be in her possession at the time of her decease, it is my will that it shall revert back to my estate and be equally divided among my three children, J. T. Eckles, E. M. Eckles and L. E. Shipp.” — Held, that the testator’s son, J. T. Eckles, took a vested remainder, as tenant in common with the other two children, in the specific real estate here mentioned, and that his undivided one third interest was subject to levy and sale as his property before the death'of the tenant for life. Held, also, that the testator having been dead more than ten years when the sale took place, the assent of the executrix, who was the tenant for life, may bepresumedto this devise in her own favorassuch tenant and in favor of the remaindermen. Held, also, that an administratorwith a will annexed appointed after her death,whichoceurred some time subsequent to the sale, did not have any title as against the purchaser at such sale, or any right to administer the interest of such purchaser in the premises, or to sell such interest, together with the other two undivided thirds, for distribution. Held, also, that an order of the court of ordinary granting leave to sell for distribution and the payment of debts, on a petition of the ' administrator to sell for distribution only, conferred no power on the administrator to make sale of an interest to which he had no title, and which had by the sheriff’s sale ceased to belong to the person to whom it was devised. Held, also, that the purchaser was not affected by any equities which arose amongst the original tenants in common, or between the executrix and the one whose interest he had purchased at .the sheriff’s sale, by reason of the failure of such one to repay money borrowed from the executrix or life-tenant.
    2. The merits of the whole case being controlled by the foregoing rulings, and the verdict of the jury being correct, any errors committed by the court in the progress of the trial were immaterial.
    December 28, 1891.
    Wills. Estates .Executors and administrators. Title. Sales. Practice. Before Judge Hutchins. Walton superior court. August term, 1891.
   Judgment affirmed.

Sterling Eckles left the will quoted in the first headnote. He appointed his wife and one of his sons, Erank M., executrix and executor. The wife qualified as executrix, took possession of the property bequeathed, and remained in possession until her death in 1889. Her co-executor died before her death. In February, 1887, an attachment in favor of Gibbs & Spence against J. T. Eckles was levied upon one third undivided remainder interest in the house and lot, and the property levied on was sold at sheriff’s sale to Gibbs & Spence. In June, 1889, Shipp was appointed administrator de bonis non with the will annexed of Sterling Eckles. By petition he asked for leave to sell the property, alleging that the sale was necessary for distribution and alleging no other reason. Hpon the petition the court of ordinary granted him leave to; sell the realty mentioned for the payment of debts and for distribution. He attempted to sell under this order, and Gibbs and Spence interposed their claim. Hpon the trial it appeared that when Susan Eckles died, there were in her possession two notes of J. T. Eckles to her, amounting to a little over $1,000, one made in 1880 and the other in 1886, the first having a credit of $60.40 January 26, 1885, and tho other a credit of $25.42 interest to October 20,1886. From testimony for the administrator it appeared that Susan E. was in possession, either by herself or tenant, of the realty up to her death, that afterwards and up to the time of trial the administrator was in possession, that the consideration of the notes mentioned was the loan by Susan Eckles to J. T. Eckles of the $1,000 mentioned in the will, and that J. T. Eckles is insolvent. The claimants did not contend that they were ever in possession of the premises, but one of them testified that one of the tenants of the property paid to' him (witness) some rents after the death of Susan Eckles and after the appointment of the administrator and after the claim was interposed. A witness had in his hands some notes transferred hy J. T. Eckles to his mother, Susan, which witness collected, amounting to some one hundred to one hundred and fifty dollars; paid the money over to Mrs. Eckles’ attorney; did not know how or on what consideration Mrs. Eckles held the notes; understood that J. T. owed his mother money ; did not know that these notes were held as collaterals for the notes above mentioned ; J. T. Eckles sold his mother some land for about $500, witness thought; did not know how she paid him for it.

Henry D. McDaniel, for plaintiff in error,

cited 32 Ga. 696; 39 Ga. 381; 58 Ga. 334; 65 Ga. 571; 69 Ga. 314; 57 Ga. 211; 59 Ga. 718; 79 Ga. 430; 48 Ga. 596; 54 Ga. 602; 47 Ga. 195; 68 Ga. 735; 65 Ga. 274; 63 Ga. 649.

McHenry & Walker, contra,

cited Code, §§2483, 2269, 2270, 2695, 2570-2584; 26 Ga. 515; 71 Ga. 196; 80 Ga. 36; 82 Ga. 687; 22 Ga. 323; 77 Ga. 352; 78 Ga. 26; 79 Ga. 150-180, 430; 54 Ga. 602; 75 Ga. 448; 86 Ga. 185; 55 Ga. 12, 359-449; 29 Ga. 585; 40 Ga. 410; 85 Ga. 236; 83 Ga. 79; 81 Ga. 722-776.

There was a verdict for claimants. A motion for new trial made hy the administrator was overruled, and he excepted.  