Wisner v. Richardson

SMITH, J. There are but few disputed questions of fact in this case, and those in dispute are not of controlling importance. The facts may be stated as follows: On March 25, 1912, Mrs. Nannie W. Harper was the owner of the southwest quarter of the northeast quarter of section 32, township 20 north, range 3 east, and a portion of the southeast quarter of the northeast quarter of the same section, and on*that date she executed two deeds of trust to the Commonwealth Farm Loan Company, to secure a debt of J ames A. Harper, her husband, in the sum of $1,500. One of these deeds of trust was to secure the principal, the other to secure the interest thereon. Mrs. Harper died testate in March, 1915, but named no executor in the will, and her husband was appointed administrator with the will annexed. Under the will Mrs. Harper devised to James, Rufus and John Wisner, her brothers, and Elsie Allen, her sister, the forty-acre tract as tenants in common, but upon the express condition that they should assume and discharge the indebtedness due by the testatrix at her death. The other tract was devised to her husband. The administrator called upon the devisees of the forty-acre tract to discharge the indebtedness and take the land, bnt they declined to do so, and repudiated the will. There was never any contest, however, over the will, and the existence and validity of the will is not questioned. Upon the refusal of the devisees of the forty acres to pay the indebtedness and take the land, the administrator applied for, and obtained, an order of sale from the probate court to sell the forty-acre tract. Pursuant to this order, the forty-acre tract was sold to H. L. Richardson for the sum of $1,225. At this sale Richardson became the purchaser after competitive bidding agáinst the Wisners and Mrs. Allen, who would have been the heirs in case of intestacy, as Mrs. Harper left no children or descendants of children. After the confirmation of this sale in the probate court, James Wisner appealed from this order of confirmation, and the circuit court held that the sale was void because of certain irregularities in connection therewith. This judgment of the circuit court was affirmed on appeal to this court. James A. Harper, the administrator, also sold a twenty-acre tract of land which he, himself, owned, and, with a portion of the proceeds of this sale, and by using all of the money paid him by Richardson, he paid the indebtedness due the loan company, which at that time amounted to $1,719. Richardson brought this suit to be subrogated to the rights of the loan company, and Harper, the husband, who was made a defendant, filed an answer and cross-complaint, in which he prayed that he, too, be subrogated to the extent of the portion of the indebtedness paid by him, which amounted to $494. Various pleadings were filed by the heirs at law, including demurrers to the pleadings filed by both Richardson and Harper. The issue is raised that the right of subrogation did not exist. The court granted subrogation to Richardson for the sum paid by him and the interest thereon in the forty-acre tract, and granted to Harper subrogation subject to the lien of Richardson. It is insisted that subrogation should not have been granted to Harper at all, and that, if granted to Eichardson, the right should have been given against all the land described in the deeds of trust, and not limited to the forty-acre tract which he purchased. The argument is that subrogation is an equitable relief which is granted only when it accords with equitable principles, and it is insisted that the equities are with the brothers and sisters. They say they have repudiated the will, and that the indebtedness due the loan company, in satisfaction of which the forty-acre tract was sold to Eichardson, was the individual debt of Harper, and not the debt of his wife, and they say that, inasmuch as Harper, by selling his twenty-acre tract of land, placed it beyond the reach of the court, the interest given him under the will should first be subjected to the payment of the indebtedness due the loan company. (1-2) Eichardson does not complain that his right of subrogation was limited to the forty-acre tract of land which he bought at the administrator’s sale, and we need not, therefore,'review the correctness of this limitation. Was the decree correct'in'other respects? We answer this question affirmatively; Learned counsel for appellants mistake the effect of the will of Mrs. Harper. It is true, of course, that appellants could not be required to pay the debts of their sister, and it is equally true they were not required to take under the terms of the will. But their election in the premises extended only to the right to take, or not to take, under the terms of the will. They could not elect to take the benefits granted by the will, and renounce its burdens. If they elected to claim the property devised to them, they took that property with the' burden upon it which the will imposed, and that burden was to pay the debts. They, of course, took no interest in the tract, which was devised by the testatrix to her husband. Appellants refer to themselves as the heirs of their sister. So they are. But the will arrested the operation of the law of descent and distribution. Collateral heirs are not given a right, such as a widow has, to elect between the provisions of a will and the provisions of the statute. The rights of these collateral heirs depend upon the provisions of the will, and they take only such interest as the will gives them, and by the decree in this cause the court accorded them the right to take the property devised them upon compliance with the terms of the will, that is, to pay the debts. They declined to do so, and can not, therefore, now complain. Decree affirmed.