
    No. 7136.
    Moncrief, Executor, v. Moncrief et al.
    Decedents’ Estates. — Debts of Testator. — Devisee.—The devisee of land and his grantee take it subject to the payment of the testator’s debts. Same. — Executor.—Sale of Land. — It is an executor’s duty to apply to the proper court for an order for the sale of land to pay debts when necessary, and it is proper to order a sale on hispetition whenever it would be on the petition of creditors.
    Same. — Administrator's Consent. — Creditor's Bight. — Estoppel. — Case Overruled. — The consent of the administrator to the sale of the land by the heir can not divest the creditor of his right to have his debt made out of the land, although such consent might estop him, were the rights of creditors not affected. Pell v. Farquar, 3 Blaekf. 331,, overruled on this point.
    From the Jennings Circuit Court.
    
      T. C. Batchelor, for appellant.
    
      G. W. Swarthout, for appellees.
   Worden, J.

— This was a petition filed by the appellant, .as executor of the last will and testament of Caleb Moncrief, ■deceased, in the court below, for an order for the sale of certain real estate for the payment of the debts of the deceased. It is stated in the petition that the testator died the owner of certain real estate, described, situate in Jennings county; that he left no personal estate whatever; that he owed debts on which there was due at the time of filing the petition about the sum of three hundred dollars, together with the costs of administration, which will probably amount to one hundred dollars.

The will of the testator contains the following clauses :

“First. All my just debts are to be paid.
“Second. I give and bequeath to my beloved wife, Jane Moncrief, all my estate, real and personal, of which I may die seized or possessed, during her natural life.
“Third. After her .death, I give and bequeath all my real and personal estate to my son, Maxa Moncrief.”

The testator died, as is alleged, in January, 1870. The ■following allegations are found in the petition: “That on the — day of October, 1870, the said Maxa Moncrief sold and conveyed to the defendant George W. Swarthout all of the real estate above described, which was all the real estate left by said decedent, the said Swarthout at'the time well knowing that the debts of said decedent had not been paid, and that there was no personal property belonging to said estate, •out of which to pay the same ; that, at the time of said conveyance to said George W. Swarthout, the estate of said Caleb Moncrief was, and still is, indebted in the sum of $300 and more ; that to pay said’indebtedness it has become necessary to sell a portion or all of said real estate,” etc.

Swarthout and his wife were made defendants to the petition, and the fifth paragraph of their answer was as follows :

“For fifth paragraph of amended answer defendants say that plaintiff ought not to have his order of sale, as pi’ayed for in Ms petition, in tMs, that plaintiff having paid the legacies mentioned in the will of the testator, to the sole heir and legatee of the same, Maxa Monerief, by delivering up to him and permitting him to take possession of the real estate in plaintiff’s petition mentioned, and permitting him to treat and use the same as Ms own ; whereby said heir and sole legatee had a right to sell and convey the same. Defendants aver that they purchased said real estate from said heir and legatee, as they had a right to do, in good faith, without any knowledge that there were any debts unpaid against said estate; that they paid a full valuation therefor, to wit, $5,000; that part of the purchase - money was in property, to wit, the undivided half of a large steam flouring mill and dwelling-house, together with the land on which the same is situated, in Geneva township, Jennings county, Indiana, worth $4,000, which property said heir and sole legatee was the owner and in possession of at the commencement of this suit, and out of which this plaintiff could have made the money to pay all the debts against the estate, but plaintiff wholly failed and neglected so to do; that, soon after said sale arid purchase of the mill aforesaid, this plaintiff made an agreement with the heir and legatee to go into partnership with him in running and occupying the mill for their mutual benefit, but this plaintiff having failed to get his means or money together to- do so, plaintiff arranged with one William G. Stratton to go into partnership with the heir and sole legatee, Maxa Monerief, in running and occupying said mill, until the plaintiff could get his money collected together to do so ; that the remaining $1,000 was paid as follows : $463 paid off a mortgage to the school fund against said land ; the remainder was divided into three equal payments in one, two and three years, defendant giving his note therefor. The first payment was paid to Maxa Moncrief, the heir and legatee aforesaid and payee of the notes. The remaining two were assigned to one William G. Stratton, -and by him to one Iiiram T. Bead, a creditor for a large amount of Maxa Moncrief, heir, etc., aforesaid, for the purpose of preventing this defendant from buying up any offsets against said notes in the hands of the payee; all of Avhich facts this plaintiff well knew and consented to. That defendant rvas asked by said Bead if said notes were all right; defendants told him they were, but at the same time told him he Avould not pay them until the debts against the estate of Caleb Moncrief Avere settled. That at the - term of this court, and before said notes Avere paid to said Bead, defendant asked this plaintiff if he required defendant to pay those notes to him as assets to pay debts; he answered that he did not need-the money to pay debts against said estate; this plaintiff then and there answered defendant that he did not, that he had the debts all arranged, and that defendant could pay the money to said Bead; all of which facts this plaintiff well knew. Defendants aver that plaintiff connived with the heir and sole legatee, Maxa Moncrief, to •convert and appropriate the property, both personal and real estate, belonging to said estate, to his own [use], as against the creditors of said real estate. Wherefore, in consequence of all of Avhich facts and negligence on the part ■of the plaintiff, defendants ask judgment, that plaintiff do not have his order of sale, as- prayed for in his petition, and that defendants have judgment for costs.”

A demurrer to this paragraph, for want of sufficient facts, was filed by the plaintiff, and overruled ; exception. Issue ; trial by the court; finding and judgment for the defendants.

The correctness of the ruling on the demurrer above mentioned is questioned by an assignment of error. We are of opinion that the demurrer to the fifth paragraph of answer should have been sustained. The devisee of the land, and the purchaser from him, Swarthout, took it subject to the payment of the debts of the testator. Weakley v. Conradt, 56 Ind. 430.

There is nothing in the paragraph of answer that estops the creditors of the testator from instituting proceedings for an order for a sale of the land, by the executor, for the payment of their debts. 2 R. S. 1876, sec. 78, p. 523. There is, therefore, nothing that estops the executor from procuring such order of sale. It would be quite incongruous to hold that the executor could be authorized to sell on the petition of creditors, and not on his own petition. It is his duty to apply to the proper court for an order for the sale of land to pay debts, when necessary, and it is proper to ■order a sale on his petition whenever it would be on the petition of creditors. The executor is a trustee, invested with the power, in a proper case and on the order of the proper court, to convert real estate into money for the benefit of the creditors of the estate; and the acts charged in the paragraph of answer, while they might estop him were the rights of creditors not affected, can not estop him as executor to do and perform such duties as may be necessary and proper for the payment of the debts of the estate.

It is alleged in the paragraph, among other things, that “plaintiff connived with the heir and sole legatee, Maxa Moncrief, to convert and appropriate the property, both personal and real estate, belonging to said estate, to his own use as against the creditors of said estate.”

If this allegation means that the plaintiff was guilty of a devastavit, still, as between the heir or devisee and the creditor, the loss must fall on the former, and not the latter. Nettleton v. Dixon, 2 Ind. 446. The creditors of the estate might perhaps maintain an action for a devastavit against the executor and his sureties upon his bond; but they can not be driven to that remedy for the collection of their debts.

Our attention has been called to the case of Pell v. Farquar, 3 Blackf. 331, in which it was said that, “If an administrator consent to the sale, by heirs, of the real estate of the intestate, he divests himself of any right,- which he might otherwise have had under the statute, to make such, estate assets, in case of a deficiency of the personal property.” This proposition, we are satisfied, is founded in error, inasmuch as the consent of the administrator to the sale of the land, by the heir, could not divest the creditor, in the case supposed, of his right to have his debt made out of the land, and this right may be worked out by an order for the sale of the land made on the petition of the administrator as well as on the petition of the creditor. The case above cited, upon the point stated, must be overruled.

The judgment below is reversed, with costs, and the cause remanded, with instructions to the court below to sustain the demurrer to the fifth paragraph of answer.

Opinion filed at November term, 1880.

Petition for a rehearing overruled at May term, 1881.  