Will of Root

LyoN, C. J.

For the purposes of this appeal the object tions interposed by the heirs of the testator to the petition of the administrator for leave to sell the reversion in the Eond du Lao city property must be treated as a demurrer *266 thereto, and hence the averments in such petition must be taken to be true. Indeed, we do not understand there is or will be any controversy concerning the facts of the case.

Some question was made in the argument as to whether the interest of the heirs of the testator in the Eond dn Lac real estate is a remainder or reversion. If they take under the will, undoubtedly they take an estate in remainder; but if by descent, they take an estate in reversion. And whether it be one or the other, it is a vested estate. R. S. secs. 2033-2037. For reasons which will presently appear, the question is not important. It may be observed, however, that at common law the rule seems to have been well settled in England, and in many, perhaps most, of the United States, that a devise to the heir at law of precisely the same estate he would take by descent were there no devise, is void, and the heir takes by descent in such case and not by purchase. 4 Kent, Comm. 507. The rule was changed in England by statute 3 & 4 Wm. IV. ch. 106. Were it necessary to decide the question, we should probably be constrained to hold that, notwithstanding the residuary clause in the will, the heirs of the testator in this case take their estate in the city property by descent, because they would take the same estate therein had the will contained no residuary clause; and hence, that their estate is a reversion.

But whether their estate be a remainder or a reversion, the will itself contains indisputable evidence that the testator intended to charge his real estate not specifically devised with the payment of legacies if the personal estate proved insufficient to pay them. Such evidence is found in the residuary clause, which expressly limits the residue of his estate, both real and personal, to such of it as shall remain after all debts, legacies, bequests, and devises have been paid. Language could not more plainly express the *267 intention of the testator to charge both his real and personal estate with the payment of the legacies in his will. Such intention of the testator is controlling in the distribution of his estate.

It may be observed here that there is abundance of authority to the effect that when, as in this case, legacies are given generally, and the residue of the real and personal estate is afterwards given in one mass, such legacies are a charge on the residuary real as well as personal estate, unless such construction is opposed to other provisions in the will. In Turner v. Gibb (N. J. Ch.), 22 Atl. Rep. 580 , numerous eases are cited which sustain this doctrine. Under this rule, the residuary estate would be charged with the payment of legacies in this case, even though the residuary clause did not contain the limitation above mentioned.

It follows that the heirs took the reversion or remainder (whichever it may be) subject to the payment of legacies. The personal estate has been exhausted, and it has proved insufficient to pay all the legacies. Hence, the contingency lias arisen which renders necessary a resort to the residuary real estate to make up the deficiency. A reversion or vested remainder may be sold on execution before the expiration of the precedent estate. 1 Freem. Ex’ns, §' 178, and cases there cited. No valid reason has been suggested why the same interest may not also be sold to enable an administrator to pay legacies which are a charge upon such interest.

We think the power and duty of the court to order the residuary estate sold to pay legacies is not impaired or affected by the circumstance that a portion of such estate was the homestead of the testator at his decease. The testator had the right, while living, to convey to a stranger, without the signature of his wife to the conveyance, the reversion in the homestead after it should cease to be such. *268 Ferguson v. Mason, 60 Wis. 377 . He may also devise it to a stranger (R. S. secs. 2271, 2277, 2280), and his widow can preserve a homestead right therein only by electing to take the provision made for her by law, instead of that contained in the will of her deceased husband. R. S. secs. 2171, 2172. Here the husband specifically devised to the wife an estate in the homestead which may endure longer than that she would have taken under the statute, for under the statute her estate would terminate upon her marriage as well as at her death, while under the will it only terminates at her death. She elected to take under the 'will, and holds the property by virtue of the devise thereof to her. The fact that it was once the homestead of her husband and herself does not affect the tenure upon which she holds, one way or the other, and there remains attached to the property no quality of a homestead which interferes wfith the sale of the reversionary interest therein to complete the payment of legacies.

It is urged that, inasmuch as the widow is only about forty-five years of age, and liable to live many years, the reversion in the property dependent upon her life estate would sell for but little, and hence that it would be a hardship on the heirs to force a sale thereof. The answer to this is the same that would be made were the property about to be sold on execution or foreclosure of a mortgage or mechanic’s or laborer’s lien; that is, the heirs must protect themselves by bidding or procuring bidders at the sale. The legatees must protect themselves in like manner. The courts cannot ahva37s, or usually, save the parties interested in property about to be sold under judicial process from the peril that it may be sold below its value. The remedy against such peril is, in a large measure, in the hands of such parties themselves. It seems to us that in this case some amicable arrangement might be made between the heirs and legatees who are not heirs, by *269 which the property may be made to sell for its value, or a sale thereof be avoided by a satisfaction of the legacies, the assignment of the residuary estate to the heirs by the proper court, and the discharge of the administrator. But, however that may be, we think the petition of the administrator for leave to sell the residuary estate should have been granted. It is scarcely necessary to add that the specific life estate in the property devised to the widow is not chargeable with the payment of legacies.

By the Court.— The judgment of the circuit court is reversed, and the cause will be remanded with directions to that court to reverse the order and judgment of the county court denying the petition of the administrator, and for further proceedings according to law.