It is said in the brief of defendant in error that two questions are involved in this case : “ 1. Is the time for the distribution of the estate of the deceased fixed by his will, and, if so, has that time arrived? ” “ 2. Upon what basis is the distribution to be made?” And, as we understand it, no other question is submitted for our consideration. Uro in a careful examination of its provisions, we are convinced tiie testator at the time lie made the will contemplated that his wife would not renounce under the will, or marry again, hut would remain on the land with the children, cultivate so much thereof as she could profitably manage, and receive rent from the balance, and also so much of the surplus of the personal assets remaining after payment of debts, as she required for the support of tlie family. The testator evidently believed there would be an overplus then left in the hands of his executor from the rent and personal assets, after means, as required by his widow, had been so furnished. This overplus, accumulating each year, was all and everything intended by tlie testator to be distributed by bis executor, under that clause of the will directing distribution to tlie children when the youngest child became of age. The proceeds of tlie sale of the land were not intended by the testator to be under the supervision of his executor for distribution, as shown by any clause of the will evidencing such intent. On the contrary no power is given to the executor to sell the land, but only the right to lease it by consent of the widow.
No sale of the land was contemplated or provided for by the testator. The purpose and intent of the testator to keep the land intact and furnish means from rents and personal assets for the s,up port of bis widow and family was defeated. She renounced under the will, married again, and her widow’s award, together with the debts, absorbed ail the personal assets, leaving a deficiency, to pay which, the real estate, with her consent, upon the petition of the executor, was sold by tlie order of the County Court. The balance of the proceeds of that sale after satisfying the deficiency was $900. This belonged to the plaintiffs in error and the three other children, who were the owners in fee, and the time for the distribution of that balance was not fixed or affected by the will, but is fixed by the law, and plaintiffs in error were entitled to their respective- shares thereof, with six per cent interest thereon from the day of sale, to the time they filed their petition. The executor sold the land by virtue of the order of the County Court, and he was bound to sell on the terms fixed by the order at the May term, 1881. He reported to the court that in pursuance of said order and on May %8, 1881, he sold the land to Henry Duel in, the highest and best bidder, and that the said purchaser was ready and willing to comply with the terms of sale, and asks the court to authorize him, the executor, to execute deed to the purchaser. On May 30, 1881, an order of court was made upon this report, in which it is stated, that on that day the executor appeared and made a-report of sale to Henry Duelm of said land for §1,700, and that said jmrchaser has complied with the terms of the order of sale, and report is approved and sale confirmed.
By the terms of that sale the purchaser was required to pay one-third of the purchase money on the day of sale, the balance in two equal payments in six and twelve months thereafter, with six per cent interest from day of sale, and secured by mortgage on the premises. Hence, it was the duty of the executor to collect of the purchaser the cash and interest-bearing securities, according to the terms of the sale, and when he made the sale, in law, he is presumed to have received the cash payment and interest-bearing securities. Moreover, the executor in his final report charges himself with the §1,700 receipts from sale of real estate, and reports §900 remaining in his hands belonging to the six heirs. The agreement with Duelm, made on May 30,1881, two days after said sale, wherebjr the time of the payment of this §900 is extended, one-half to ten years, and the other to seventeen years, without interest, changing the terms upon which the property was ordered to be sold, was without lawful authority. The order of sale had not been set aside, and the court had no power to affirm such agreement. The executor had no power to bargain for the support of the minor children and bind them by such agreement, nor to apply any of the share of the purchase money or interest thereon, belonging to the petitioners, to the payment for their support, maintenance and education, or for like support, maintenance and education of the other heirs. If the agreement is binding upon any one, it is binding upon Gr. F. Helmkamp and Henry Du elm, and does not relieve the former from his legal liability as executor to pay to plaintiffs in error their respective shares of the proceeds of the sale of said real estate, with interest thereon from the day of sale. The order and judgment of the Circuit Court is reversed and the cause remanded.
Reversed and remanded.