•Case 31 — Action by W. L. Hurst against Sabah? Davidson and Others foe a .Settlement of the Estate of John A. Duff, Deceased.

Oct. 2.

#### Hurst v. Davidson and Others.

appeal from perry circuit court.

From a Judgment of Dismissal the Plaintiff, W. L. Hurst, Appeals.

Reversed.

Wills — Construction—Rights of Creditors — Bona Fide Purchasers of Devised Estate — Lien of Creditor Under the Will.

Field: 1. Where a will directs the executor to sell the real- and per- • sonal estate, and from the proceeds to pay the testator’sl debts and a sufficient amount to his widow for her1 support, andl to distribute the remainder to his children, the children can not, by agreeing among themselves on a division of the real estate, instead of taking its proceeds), defeat the rights of the creditors to he paid before anything passes to the children.

2. Where a will directs the executor to sell the real estate, and distribute the proceeds, after making certain payments, beftweieh. the children of the testator, the mére partition of the land by the children among themselves does not constitute them hona fide purchasers, within Kentucky Statutes', 1899, section 2087, providing that a devised estate, when sold, shall not he liablei to the creditor's of the testator1 in the hands of hona fide purchasers, unless action is instituted within six months after the estate is devised.

3. Kentucky Statutes, 1899; section 2087, which.provides that a devised estate, when sold, shall not he liable to the creditors of the testator in1 the hands of a hona fide purchaser unless action is instituted within six months after the estate is devised, being intended to protect a devisee in the sales of what is devised, has no application where a will directs the executor to sell the real *352estate, and distribute the remainder of the proceeds, after the-•payment of debts and a sufficient amount to support the widow, between the testator’s children.

4. Under Kentucky Statutes, 1899, section '2066, providing that when any property is devised subject to the1 payment by the devisee to another of a -sum -of money, the latter shall have a lien on the legacy for the sum to be paid, and section 467, providing that the word “legacy’’’ includes either real or’ personal' estate, the creditors of a testator, which directs by his will that his executor shall sell his real and (personal estate], and -from the proceeds to pay his debts, etc., and distribute the remainder between his children, have, on the recording of the will, a lien of record on the land for their debts.

W. L. HURST and HAZELRIGG & CHENAULT, x^ob appellant, Hurst.

Plaintiff Plurst filed this suit in November, 1898, for a settlement of the estate of John A. Duff, deceased, alleging that he left no personal estate except -such, as waisl assigned to- his widow, and in which he seeks to subject the real estate of Said decedent to the payment of plaintiff’s debt, and alleging that the heirs of decedent had1 made an arrangement among themselves to partition the land and had done -so, an-d had1 conveyances -made to each- other, and were claiming to- he bona fide purchasers of the land, and that it was not subject to the pay-ment of their ancestor’s debts by reason of the delay of plaintiff in bringing bis action. The lower court sustained a demurrer -to plaintiff’s petition, and after doing so subsequently gave him a judgment for his debt, but denied him the relief he sought in subjecting the land of decedent to the payment of Ms debt.

The decedent left a Will by which he directed; that all his land and personal property be sold, and’ out of the proceeds his debts should be paid.

This provision -of the will was entirely ignored by the executor and heirs, and, as stated, the heirs divided the land and now claim it is not subject to plaintiff’s debt.

We claim that under the will the creditors of the decedent are-given the right to have their debts paid out tof the! land-, thel personal estate being insufficient therefor, and that this' right can not he defeated by any collusion or arrangement by the' heirs 'in having the land divided and deeds -of partition made! to each other.

AUTHORITIES CITED.

Alexander v. Kernel, 81 Ky., 348; Ky. Stats., secs. 2087- and 813; Civil Code, secs. 428, 519, 520 and 603. *353J. J. O. BACH, W. H. MILLER and L. H. M. SALYER, roí aotelIEES.

1. In this case no action was instituted to settle the estate until after the lapse of nearly seven years after it was devised.

2. It is not denied that the appellees ar.e bona fide .purchasers of the land for a valuable consideration,

3. It can not be seriously contended that the judgment dismissing appellant’s petition so far as it sought to subject the land was improper.

4. The judgment appealed from is not a final ¿order, it being merely a-n expression of an opinion that the creditors slhouM' exhaust the other property before interfering with that which had been divided among the devisees.

Opinion or the court bt

JUDGE HOBSON

Reveesinu.

Appellant, Hurst, on November 19, 1898, filed his petition in equity in the Perry circuit court, alleging that in the year 1892 John A. Duff died a, resident of Perry county, leaving, surviving him, Polly Duff, his widow, who has since died, also a number of children and grandchildren, his heirs at law, who were made defendants to the action. He also alleged that the decedent left a will, which had been duly probated, by which he directed that all his property, real and persona], should he sold by his executor, and that out of the proceeds the executor should make certain provision for his widow, and pay all his debts, and after this was done divide the remainder of the proceeds in a certain manner among his descendants. The executor was made a defendant to the petition, and it was charged that there was no personal estate, hut that the decedent owned a large and valuable tract of land in Perry county, which was then in the posséssion of the children or those claiming under them. He alleged that he was a creditor of the decedent, setting out in detail his debt, which had been duly proven up and demanded of the executor. He further alleged that *354the executor had made no settlement of his accounts, and that a sale of the land, or part of it, would be necessary to pay the debts. He prayed a settlement of the estate, and for a sale of enough of the land for this purpose. A few days afterwards the personal representative filed a similar suit. The court sustained a demurrer to Hurst’s petition, for what reason is not shown, but thereafter, treating the case as still in court, consolidated it with the suit brought by the personal representative and another suit which had been brought by a creditor of some of the children against them. The consolidated actions were referred to a commissioner, who reported the debts against the estate, also that the personal -estate in the hands of the representative was exhausted, and the court thereupon entered a judgment dismissing the petition of the representative- and Hurst, so far as they sought to subject the land to the debts of the decedent, on the ground, as stated in the judgment, “that the will of John A. Duff, Sr., deceased, confers upon the plaintiff, E. C. Duff, Sr., as administrator of his estate, the mere naked power to sell or convey and distribute the proceeds of the sale of his realty among his devisees, and that the title to his realty vested in them, and not in the administrator; and it-appearing to the satisfaction of the court that the devisees and their vendees partitioned th'e land hereinafter described among themselves, and made to each other conveyance for their respective parts more than six months after the qualification of ,the administrator, and before any suit was instituted to settle the estate, they thereby elected to take their interest in said estate in land instead of in money — the proceeds of the sale of same — and thereby become *l)ona fide*purchasers for a valuable consideration, and that the same is not liable for the debts of the creditors.” '

*355The propriety of this judgment is the only question we deem it necessary to determine on the appeal. The will of the testator, so far as material, is in these words: “After my death, I will that all of my property and effects, both real and personal and mixed, that I own at my death, be sold as hereinafter described and the proceeds of the sale of all my property and all the debts be collected .and disposed of and paid out as follows: I first desire and will (hat myself and wife be decently buried, all my just debts be paid, and second I desire that if my beloved wife, Polly Duff, if she should outlive me, I in that event will that my said wife, Polly Duff, have a sufficient amount of my effects set apart to her to amply support her during her life, and that she select who she will live with, then after my just debts arc paid and my said wife is amply provided for, I will that the remainder of the proceeds of all my effects be divided among my children as follows: [Here follow directions for a distribution.] In order to carry out this my last will .and testament I appoint and make my son, Elijah C. Duff, my executor to carry out my will and my said executor is hereby directed ánd empowered to make sale of all the real and personal estate I have or own at my death and is hereby empowered and directed to sell and make a deed or deeds to all of my real estate to have the same force and effect as if I was to make deeds of conveyance in my lifetime to said land.”

In Duff’s Ex’r v. Duff, 21 R., 1211, 54 S. W., 711, it was held that, under this will, the land is to be treated as personalty in the hands of the executor for distribution, and that, therefore, he might protect it from trespass; but the court added: “The rule might be otherwise if, as intimated by counsel, the appellee entered on the land as one of the heirs or devisees. In such event, under some cireum*356stances, he might be regarded as having elected to take the land, or his share of it, instead of the proceeds.” But in that case no question of the rights of creditors was involved. It was simply a controversy between the executor and one of the heirs and devisees. The right of the devisees to agree among themselves on a division of the land, and to take the land instead of its proceeds, is subject to the rights of creditors; for, under the will, the entire estate, or the proceeds of it, are charged, first, with the burial expenses of the testator and his wife, and then with the payment of his debts. Only the remainder, after the payment of these charges and the support of the. widow, should she •survive the testator, is devised to the children. The children, under the will, take subject to the payment of the debts, and, if they elected to take land instead of money, they would hold the land subject to the trust created by the will in favor of the creditors, who, by its terms, are to be first paid before anything goes to the devisees. The devisees could not, by any arrangement among themselves, defeat the prior rights of the creditors, nor could they do so by reason of any nonaction on the part of the executor, who held the estate as trustee for the creditors.

In Drake v. Ellman, 80 Ky., 434, 4 R., 269, it was held under a similar will that the children were residuary devisees after the payment of the debts, and that the creditors had a prior lien upon the estate. In entering the judgment appealed from, the court seems to have based his action on section 2087, Kentucky Statutes, 1899. “When the heir or devisee shall alien, before suit brought, the estate descended or devised, he shall be liable for the value thereof, with legal interest from the time of alienation, to the creditors of the decedent or testator; but the estate so aliened shall not be liable to the creditors in the hands of a *bona -fide*
      *357purchaser for valuable consideration, unless action is instituted within six months after the estate is devised or descended to subject the same.” The mere partition of the land by the children among themselves did not constitute them *"bona fide*purchasers. They held the land after that partition subject to the rights of creditors, just as they held it before. Besides, this section had no application. The land did not descend to the children, for it was devised by the testator to be sold. The land was not devised to the children, and they did not, therefore, take it as heirs of the testator, or as devisees. The children took nothing under the will, except as residuary devisees of the proceeds of the sale of the property by the executor after the debts were paid. In so far as the children aliened anything more than the surplus remaining after the payment of the debts and the other preferred charges, they aliened that which was not devised to them, and to which they had not the complete title. The statute is only intended to protect the devisee in the sale of what is devised to him. It was not intended to enable him, after six months without suit brought, to sell what was not his under the will. Section 2066, Kentucky Statutes, 1899, provides: “When any property shall be devised subject- to or upon the payment of the devisee to another of a sum of money or his doing some other thing, the latter shall have a lien upon the legacy for the sum so to be paid, or for the value of the thing to be done,” By section 467, Kentucky Statutes, 1899, the word “legacy” includes either real or personal estate. The creditors, therefore, as the will was recorded, had a lien of record on the land for their debts. The children had no title from the executor. The rule that a purchaser of land charged generally with the payment of debts need not look to the application of the purchase money (see Grotenkemper v. *358Bryson *et al.,*79 Ky., 353, *4*R., 888; Drake v. Ellman, supra, has no relevancy to the case before us, as the will directed- the land to be sold by the executor, and no purchase was made from him. If any one purchased from one of the heirs, be did so with notice of the state of the title, and therefore stands in no better attitude than bis vendor.

We are therefore of the opinion that on the facts shown the court should have directed a sale of enough of the land to pay the testator’s debts.

Judgment reversed, and cause remanded for further proceedings consistent herewith.

Petition by appellees for modification of opinion overruled.'