The question arises in this case whether it was the duty of the court to order the distribution of the estate in kind, giving a portion of the notes and property to one and a portion to the other. It is claimed by appellants that Section 92 of Chap. 3 of the Be vised Statutes authorizes and requires this to be done.
The statute is as follows:
“If the sale of the personal property is not necessary for the payment of debt- or legacies, or the proper distribution of the effects of the estate, the court may order that the property be preserved and distributed in kind.”
It may be doubted whether the above statute has reference to dioses in action and other claims that merely have to be collected and are not to be sold by the administrator for the payment of debts. The statute in words refers to personal property, the sale of which is not necessary for the payment of debts or for distribution, or the payment of legacies.
Jiotes and accounts, of which the estate in question chiefly consists, are not required to be sold by the executors. It is their duty to collect them and pay over the proceeds to the parties entitled to them. It would be only by implication that notes would be included. But whatever construction may be placed on the above section of the statute in regard to the distribution of the notes and accounts, it appears quite clear that the statute is not peremptory. It provides that the court 7)lay divide the assets in kind, but does not say that it shall do so. It appears to us that it is left to the court, in matters of this kind, to exercise a sound discretion and to divide the assets or not, in kind, as the court may think for the best interests of all concerned. The very terms of the statute so implies. It provides that the personal property may be distributed in kind, 1, when it is not necessary to sell it to pay debts or legacies; 2, when not required to be sold in order to properly distribute the estate. Who is to decide as to whether the collection of the notes and accounts is necessary for the proper distribution of the assets? Evidently it is the business of the county court to pass upon that question, and it necessarily must have a large discretion in the matter, which the circuit or appellate court ought not lightly to interfere with. We do not wish to hold that in no case would its discretion be interfered with by this court, but we think clearly this is not one of the cases.
In so large an estate as this, with such a variety of personal property, consisting of notes and accounts of different quantities and grades and other personal property, it would appear to be a very difficult task to make a proper distribution of the personal assets in kind, attended with considerable risk of great complications that might arise in consequence of such an attempt.
Then there were a large amount of debts and claims filed against the estate at the time of the filing of the petition, amounting to $153,690.85, and at the time of hearing they had increased to $193,805.16, none of which had been allowed. The widow, under the above section of the statute, would have no more right to select her share, which would come to her as an heir of the estate, than the appellees would representing the other heirs. In case no agreement could be arrived at by the appellant and appellee, the court would have to appoint a commission to make partition, or hear evidence and decide for itself, and to declare first what” should be retained for the payment of debts and then what each heir should have. Evidently the simplest and best way would be to allow the appellees to settle the estate in the ordinary way, after collecting the notes and accounts.
Under the circumstances and in the condition this estate is it would have been manifestly improper to order a distribution of any portion of it in kind, even if, under any circumstances, such distribution would be legal under the statute, which we are inclined to hold that it would not, notes and accounts not being meant to be included in section No. 92 of the statute, that section having more particular reference to personal property subject to sale under section 90 of the same statute. The judgment of the court below is therefore affirmed.
Affirmed.