#### Wyer, Appellee, *v.*King et al., Appellees; Wyer et al., Appellants.

(Decided July 9, 1940.)

*Mr. Marcus G. Downing,*for appellee, Viola Wyer.

*Mr. Fred JR. Hover*and *Messrs. Betts & Betts,*for appellees, Mabel Wyer King and others.

*Mr. A. G. Fuller*and *Mr. R. E. Fuller, for ap*pellants.

*322Guernsey, J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Hancock county, in an action in partition pending therein, being a consolidation, made pursuant to order of court, of causes Nos. 25706 and 25886 in that court.

All the real estate involved in the action constitutes portions of the estate of J. N. Wyer, deceased, who died testate and whose will was duly probated in the Probate Court of Hancock county.

In the first item of his will the testator, J. N. Wyer, expressed a desire that all his just debts and funeral expenses be paid as soon as this could be done conveniently after his death. In the second item he gave, devised and bequeathed to his wife, Viola Wyer, absolutely and in fee simple, his house and lot in Eawson, Ohio, all furniture in the house and everything belonging to the house and lot. He also gave her the sum of $2,000 in money. In the third item he gave his daughter, Mabel Wyer King, and her daughter and son, Marcella Smith and Norman King, 82 acres of land known as the William Eeece farm. In the fourth item of his will he provided: “The balance of my estate shall go to Theodore Wyer and Marjorie Wyer.”

The wife, Viola Wyer, one of the appellees herein, elected not to take under the will, which election had the legal effect of adding to the residuary estate the property devised and bequeathed to her in the second item of the will.

The third item of the will constituted a devise of specific real estate to Mabel Wyer King, Marcella King Smith and Norman King, appellees herein. The fourth item of the will constituted a devise and bequest of the residue of testator’s estate which, among other property, originally comprehended a tract of land containing 191 acres, but which, upon the election of the widow not to take under the will, by operation of law, also comprehended the real estate devised *323to Viola Wyer the widow, in item second of the will. Theodore Wyer and Marjorie Wyer, appellants herein, are the residuary devisees and legatees under this item.

The appellee, Viola Wyer, widow of testator, who elected not to take- under the will, filed an action in partition in the Common Pleas Court of Hancock county, Ohio, being cause No. 25706 in that court, against the appellees Mabel Wyer King, Marcella King Smith and Norman King, and the appellants Theodore Wyer and Marjorie Wyer and others, to partition the three parcels of real estate coming under the provisions of Items 2, 3 and á of the will.

An order was thereafter made in cause No. 25706, upon motion of Theodore Wyér and. Marjorie Wyer, requiring Viola Wyer, the plaintiff in the action, to proceed in a separate action in partition against Mabel Wyer King, Marcella King Smith and Norman King, as to tract number 2 described in the petition, being the tract specifically devised to Mabel Wyer King, Marcella King Smith and Norman King. These last-named individuals were accordingly dismissed as parties defendant in cause No. 25706, which originally -involved all three tracts of real estate devised. This order was complied with by the plaintiff, and she instituted a separate action in that court, being cause No. 25886, -against Mabel Wyer King, Marcella King Smith and Norman King for the partition of tract number 2.

The order made in cause No. 25706 above mentioned was merely an interlocutory order which was subject to modification by the court at any time either by order permitting the dismissed defendants to again become parties to the action, or by order of consolidation of that action with the action in partition commenced by Viola Wyer against the dismissed defendants and designated as cause No. 25886.

Cause No. 25706 was thereafter, on motion of the *324defendants in cause No. 25886, consolidated with cause No. 25886, subsequent to the sale, confirmation of the sale and distribution of the proceeds of sale of tract number 3. Thereafter, a judgment was entered in the consolidated case confirming the sale of parcels numbers 1 and 2 of the real estate mentioned, and distributing the proceeds thereof. It is from this judgment that this appeal is taken.

The right of the specific devisees under the will to exoneration as against the residuary devisees, by reason of the specific devises being diminished through the election of the widow to take under the law and not under the will, is an equitable right constituting an equitable lien on the real estate comprehended in the residuary devise, which the specific devisees were entitled in equity to have enforced against the real estate covered by the residuary devise. Such part of such claim as was not satisfied out of the real estate that came within the purview of the residuary clause by reason of the failure of the widow to take under the will, was subject to satisfaction out of the real estate devised under the residuary clause originally. The proceeds of the Raws on property, designated in cause No. 25706 as tract number 3, coming within the residuary clause by reason of the failure of the widow to take under the will, were distributed without making provision for the payment of any part of the lien of the specific devisees thereon for exoneration. As Mabel Wyer King, Marcella King Smith and Norman King, the specific devisees, had been dismissed as parties to that action in which the tract was partitioned, and were at the time of such order of distribution not parties to the action, this distribution did not preclude them from proceeding against the real estate in the hands of the purchasers thereof or against the proceeds thereof in the hands of distributees for enforcement of their lien for exoneration thereon, and in the event that their lien was not fully satisfied out *325of the proceeds of the real estate involved in either against the tract designated as tract number 1 in cause No. 25706, coming originally within the residuary clause for full satisfaction of such lien.

The order of consolidation of the two actions in partition was properly made for the reason that the specific devisees, upon whose motions consolidation was made, had rights to exoneration in all the real estate which constituted the subject-matter of the two actions, and the amount to be received by them out of the proceeds of the real estate involved in either action was dependent on the amount they should receive out of the proceeds of the real estate involved in the other action.

The filing of the general demurrer by Theodore Wyer and Marjorie Wyer to the answer and cross-petition of Mabel Wyer King, Marcella King Smith and Norman King in the consolidated action constituted a waiver of service of summons and an entry of appearance by Theodore Wyer and Marjorie Wyer to the cross-petition. All the issues raised by the cross-petition were equitable and consequently were for the determination of the court without the intervention of a jury.

While the order appealed from in form directed the defendants, Theodore Wyer and Marjorie Wyer, as distributees of the proceeds of tract number 3, to pay to the sheriff out of the amount now held by them from the sale to plaintiff of the property situated in the village of Rawson, as and for compensation to the defendants, Mabel Wyer King, Marcella King Smith and Norman King, the sum of $735, the effect of the order was to appropriate that sum out of the proceeds of tract number 1 described in the petition in cause No. 25706 purchased by Theodore Wyer and Marjorie Wyer for the sum of $13,500 for the exoneration of Mabel King Wyer, Marcella King Smith and Norman King and this sum which with the sum of $1,194.52 *326directed to be paid for such purpose in another clause of the order, constituted the full amount of exoneration due them, which as above stated, they were entitled to have paid them out of the proceeds of tract number 1 in case they did not receive full satisfaction thereof out of the proceeds of tract number 3.

As we find no error in any of the respects assigned and argued in the briefs of appellants, the judgment of the Common Pleas Court will be affirmed at costs of appellants.

*Judgment affirmed.*

Crow, P. J., and Klinger, J., concur.