
    Landis et al. v. Scherer.
    
      Descent and distribution — Realty passes to heirs, subject to right to sell to pay debts — Administrators and executors— Realty cannot be sold where estate not indebted — Heir, giving bond to secure debts, may partition within year— Sections 10785 and 12028, General Code.
    
    1. On the death of intestate, his real estate passes directly to his heirs, subject to the administrator’s right to sell the real estate when necessary for the purpose of paying debts and the allowance made to the widow.
    2. Where an intestate leaves no debts or obligations requiring the sale of real estate, for their payment, the administrator has no right in the real estate and no power to cause its sale.
    3. Heirs who gave bond, under Section 10785, General Code, providing that an order to sell real estate should not be granted if person interested in the estate gave bond conditioned to pay all debts with charges of administering it and allowance to widow, held entitled to partition of real estate within one year after intestate’s death, under Section 12028, General Code.
    (Decided July 2, 1927.)
    Error : Court of Appeals for Lucas county.
    
      Mr. A. A. Swartz, for plaintiffs in error.
    
      Mr. B. F. J ames and Mr. George W. Millard, for defendant in error.
   Richards, J.

This action is one brought by Harvey H. Scherer to partition certain land left by Henry S. Landis, who died intestate September 24, 1926. The petition was filed October 15, 1926. Thereafter other pleadings were filed by the plaintiff, the last one being a third amended petition, which was met by demurrer filed by the defendants. The common pleas court, on consideration, 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 error is prosecuted 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 of the decedent, 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 on December 3, 1926, for the purpose of selling the real estate to pay debts. The plaintiff avers in the third amended petition that after the institution of the action by the administrator, this plaintiff, pursuant to the provisions of Section 10785, General Code, filed in the probate court of Lucas county his bond in the sum of $5,000 with the United States Fidelity & Guaranty Company as surety, which was approved by the court, and that after such bond was filed in the probate court that court proceeded no further with the petition to sell said real estate. The section of the General Code above cited provides, in substance, that an order to sell the real estate by the administrator shall not be granted if any person interested in the estate gives bond to the administrator to the approval of the court conditioned to pay all the debts mentioned in the petition eventually found due from the estate, together with the charges of administration and the allowance in money to the widow, so far as the personal estate of the deceased is insufficient therefor.

On the death of the intestate his real estate passes directly to his heirs, although it is true that the administrator is given the right by statute to sell real estate when it is necessary to do so for the purpose of paying debts left by the intestate and the allowance made to the widow. When there are no debts or obligations left by the intestate requiring the sale of real estate for their payment, the administrator has no right in the real estate and no power to cause a sale of the same in order to pay debts. By the provisions of the section already cited, the administrator is not entitled to an order to sell the real estate, even if there are debts left by the intestate, if any person interested in the estate has given bond in accordance with the requirements of that section and such bond has been approved by the probate court. WThen a bond has been given in accordance with that section and approved by the probate court, it takes the place of the real estate, and the administrator has no further right to proceed and effect its sale in order to pay debts of the estate or an allowance to the widow. .

Counsel on both sides rely on Stout v. Stout, 82 Ohio St., 358, 92 N. E., 465, 137 Am. St. Rep., 785, a case which in some respects is similar to the one at bar, but utterly dissimilar in the respect that no bond for the payment of debts, etc., had been given under the statute. The absence of such bond is mentioned in the second proposition of the syllabus and in the opinion, and it is clearly apparent that if a bond had been given in the case cited the result of the action would have been different.

Section 12028, General Code, is in harmony with the section already cited, in providing that a decedent’s lands 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 property of the deceased is sufficient to pay them.

Finding no error, the judgment will be affirmed.

Judgment affirmed.

Williams and Lloyd, JJ., concur.  