ON PETITION FOR REHEARING. Appellant, in his petition for rehearing, earnestly contends our original opinion contravenes the well-established rule that an executor or administrator may appeal from an adverse 2. judgment to sell real estate for the purpose of paying creditors. Our opinion does not so hold. Appellant's complaint as set out therein did not allege the facts required by the statute to give the trial court jurisdiction to order the sale of real estate for the payment of debts. Custer, Admr. v.Beyer (1921), 76 Ind. App. 303, 306, *Page 427 130 N.E. 834; Simms v. Gilmore, Exr. (1922),78 Ind. App. 244, 135 N.E. 183. Nor does the record show any evidence either that there were debts owing by the estate or that the personal property was insufficient to pay debts.
The cases of Hildebrand v. Kinney, Administrator (1909),172 Ind. 447, 87 N.E. 832, and Condo, Admr. v. Barbour, etal. (1936), 101 Ind. App. 483, 200 N.E. 76, relied on by appellant were actions for the payment of debts and are therefore not applicable to this action.
The petition for rehearing is denied.
NOTE. — Reported in 64 N.E.2d 308.