ON MOTION FOE EEIIFAEING.
Thompson J.The cases cited in support of the motion for rehearing do not support the position, that a special legacy is chargeable on the land,, irrespective of the question whether there are personal assets. After further consideration, we haye-concluded that the cause may be ended in the circuit court without resorting to the probate court. We shall, therefore, so modify our judgment as to' direct the circuit court, if either party shall so move, to inquire whether any personal assets came into the hands of the executor or of the administrator de bonis non, etc.,, which might, after the payment of preferred demands,, be applied to the payment of this two-hundred-dollar-a-year legacy. If no such motion is made, or if it should, appear on such motion, that there were no such assets,, then the decree, in so far as it relates to this legacy,, should be allowed to stand as it is. If there were such assets, other than cash, the court should ascertain *578what they produced at the executor or administrator’s sale, if sold, or what they would probably'have produced, if sold at the proper time and under proper conditions, and this amount, added to the cash, if any, should be deducted from the amount charged upon the fund in court in respect of the two-hundred-dollar-a-year legacy ; or if it equals or exceeds the sum found to be chargeable in respect of this legacy, th en that part of the, decree should be entirely expunged. It is so ordered.
All the judges concur.