No. 9126.

#### Ambler *v.*Bentley, Admr., et al.

(Decided March 27, 1906.)

Error to Circuit Court of Columbiana county.

*Messrs. Carey S Mullins,*for plaintiff in error.

*Messrs. Taylor & Harris,*for defendants in error.

*459Judgment reversed and judgment for plaintiff in error as shown in journal entry. Grounds stated in journal entry.

It is ordered and adjudged by this court that the judgment of said circuit court be and the same hereby is reversed. And this court proceeding to render the judgment and make the decree which should have been rendered and made by the circuit court, finds for the plaintiff in error on his note and mortgage. The court further finds that the defendants, •William J. Street, Marian Street, Homer J. Street and Harold Street, together with Elizabeth Street, executed and delivered to the defendant, Byron S. Ambler, the mortgage and promissory note set up in the answer of the defendant, Byron S. Ambler. The court coming now to determine the respective rights of the parties hereto to the proceeds of the sale of said premises in the petition described, finds that there is now due the defendant, Byron S. Ambler, as principal debt on said promissory note the sum of $3,000, with interest thereon at seven per cent, per annum, to be paid semi-annually from July 28, 1900, subject to certain credits; that by the terms of the will of Martha Street, deceased, the entire income of all her estate now remaining in the hands of the administrator, was given to William J. Street and his wife, Marian Street, to be disposed of at their discretion; that said income belongs to said beneficiaries absolutely and the expression in said will of the purpose for which said income was given, that is the support of said William J. Street and Marian Street, is not deemed to be the expression of an intention that the right of said income shall be inalienable. The court further finds that by the signing, execution and delivery of said note and mortgage as set forth in the *460answer of the defendant, Byron S. Ambler, the said William J. Street and Marian Street, his wife, have pledged the income from said property so given to them to the payment of said indebtedness to said Byron S. Ambler. It is therefore ordered that ont of the proceeds of the sale of said premises said administrator shall pay to the defendant, Byron S. Ambler, the sum so found due, in the following manner : that he shall reinvest the purchase price of said premises in securities to be approved by the probate court of Columbiana county, Ohio, and that the entire income therefrom shall from time to time be paid to the defendant, Byron S. Ambler, to be applied on the indebtedness aforesaid. The court further finds that the defendants in error, Homer J. Street and Harold Street, have by the signing, execution and delivery of said note and mortgage equitably pledged to the payment of. said indebtedness whatever interest they may have in the estate of said Martha Street, deceased, of which the premises herein to be sold form a part and that if said indebtedness is unpaid at the time of the decease of said William J. Street and Marian Street, or the survivors of them, that sufficient of the proceeds invested by said administrator as aforesaid shall be paid to the defendant, Byron S. Ambler, to cancel any balance remaining due and unpaid on this decree according to the terms of said note and mortgage; and this cause is remanded to the circuit court with directions that it calculate the true amount due said Ambler on his note and mortgage, after giving credit for all payments, and that said correct sum of the principal and interest when so found be made a part of this decree. It is.further directed that said circuit court make such further orders as may be neces*461sary to enforce and carry ont this decree bnt such orders are to be consistent with this decree.

Price, Crew, Summers, Spear and Davis, JJ., concur.