treated and acted upon as one of the provisions
of this, my last will and testament, and it shall
be delivered and recorded, as herein directed.
It is my intention that title in and to said real
estate shall vest in said Wilma, either by virtue
of said deed or by this will, provided she lives
to be of the age of twenty-one years, and, in the
event she does not, then neither she nor her
heirs shall have any interest whatever in said
real estate, except in the manner provided in
Section 7 of this will. (4) All of the residue
of my estate, of every kind and character, I
will and devise to my sister, Barbara Nation,
for life, from which she will receive the rents,
profits and income for and during her natural
life, whether the same be real estate or personal
property, and all of said residue shall be placed
in the hands of my executor, who shall manage
and control it and pay the net income thereof
to the said Barbara so long as she may live.
(5) At the death of my said sister, I will and
direct that my executor divide the said prop-
erty hereby placed in trust for her, between her
children who may be living at the time of her
death, share and share alike, and the children
of any of her children that may be dead at said
time, that is, the children of the deceased parent
taking what the parent would have received if
living. (6) I further direct that the 100 acres
of real estate which I have devised to Wilma be
considered as a part of the residue of my prop-
erty, only in case she
shall not live to
reach the age of twenty-one years. (7) Should
I die before Wilma reaches said age I will and
direct that said real estate be held by my exec-
utor in trust for Wilma until she attains such
age or, if she dies before, then until her death,
and that all of the rents, profits and income
of said land which I have devised to her be used
in her care, support, maintenance and educa-
tion, which, as hereinafter stated, shall become
hers absolutely when she reaches the age of
twenty-one years. (8) I hereby nominate and
appoint G. & G. as guardians of Wilma, who
shall have the control and management of her
until she reaches the age of 21 years.
(9) I
hereby nominate and appoint as executor and
executrix of this will G. & G. and the said Della
Green being my niece, and I charge them with
the duty of carrying out and seeing that the pro-
visions of this my last will and testament are
complied with.

*

On June 22, 1914, W. filed an answer to said petition in which he alleged that G. & G. were unfit persons to have the care and custody of Wilma, and that he himself was a fit person therefor, and about this time also filed in the same court a motion to modify the judgment of divorce against him making G. & G. parties thereto, the modification asked being that the court change its decree so as to give him the care and custody of Wilma. To this motion G. & G. appeared and filed voluminous objections. The three cases supra involving the care, custody, and guardianship of Wilma were consolidated by and submitted to said Howard circuit court for trial. This trial lasted three weeks, and upon hearing the evidence the court rendered a finding and judgment in favor of G. & G., gave them the care and custody of Wilma, appointed them guardians of her person and property, and taxed the costs of said action against W. Such costs will aggregate between $400 and $500, and the judgment therefor is unpaid. W. is of doubtful solvency, and he now claims to have no property subject to execution. For the purpose of enforcing such judgment G. & G. have filed in the Tipton circuit court proceedings supplemental to execution which proceedings are now pending in said court undetermined. In said consolidated suits G. & G. employed the firm of as their attorneys, and the reasonable value of the services of such attorneys in said suits is $1,000, which is unpaid.

G. & G. had no interest in the proceeding in said consolidated suits other than as executor and executrix of the will of L. F. Such proceedings were had for the sole interest and benefit of Wilma, and the other beneficiaries under said will had no interest in said litigation. The services of said attorneys were rendered for G. & G. in their capacity as executor and executrix only. All the costs, expenses, and attorney's fees incurred by G. & G. in such suits were for the sole benefit and interest of such child, Wilma, and the estate in general of the decedent had no interest therein and received no benefit therefrom. G. & G. also employed said

as their attorneys herein, and the services already performed by them and which it will be necessary for them to perform in the settlement of the estate are of the value of $200.

G. & G. gave bond and duly qualified as such executor and executrix. Said will remains in full force and effect. On the same day they were appointed as executor and executrix G. & G. applied to the Howard circuit court to be appointed as guardians of the person and property of Wilma, and on May 27th they filed their amended petition asking such appointment, in which they set out and averred the adoption of Wilma by L. F. and her husband, W., the divorce of L. F. from W. and on November 22, 1913, the judgment therein whereby L. F. was given the care and custody of Wilma, the death of L. F., and the provisions of her will appointing G. & G. as guardians. On June 9, 1914, G. & G. filed a second paragraph of petition setting up similar facts. On April 27, 1914, W. filed in the same court his petition to be appointed guardian of Wilma, and oned at $1,580.70, which was sold by her execuMay 15, 1914, filed an amended petition in which he set out at great length reasons favorable to his appointment and against the appointment of G. & G. To this amended petition G. & G. filed voluminous objections to the appointment of W. and alleged numer

The other costs and expenses of the administration are unpaid, but the amount thereof does not appear. L. F. at the time of her death left personal property apprais

tors for the sum of $1,937.18, and she was then indebted in amounts as follows: (Here follows various undisputed items of indebtedness aggregating $3,366.77, and also items of taxes for the years 1913 and 1914 payable in 1914 and 1915, aggregating $496.93.)

circuit court to determine the amount of in-, any of the purchase price received from the heritance tax to be paid by the devisees of 261⁄2 acres for that purpose. (6) The general the said L. F. but no report has ever been estate is not liable for any of the costs, exmade by the appraiser, and the amount has penses, or attorney's fees incident to the not been determined by the court, nor has litigation concerning the custody and guardthere been any judgment of the court as to ianship of the said Wilma, but the entire who shall pay said tax. In fact, nothing has estate of the said Wilma, as one of the benebeen done in said proceeding except to referficiaries under the will of the said L. F., the matter to the appraiser appointed by the whether the same be in real estate or in percourt. The ascertained debts of L. F., de-sonal property, and whether the same be as ceased, at this time exceed the value of her personal property, $1,860.

legatee and devisee under said will, or by deed of conveyance by the decedent during her lifetime, is liable for all of the necessary costs, expenses, and attorney's fees incident to and growing out of the litigation concerning the custody and guardianship of Wilma, and that the same should be charged against and paid out of her individual inter

The defendant Barbara Nation is the sister of the decedent, to whom property is devised for life by item 4 of the will of decedent, and the defendants Florence Blair, Grace Gemmecke, William Nation, Edna Nation, and Geneva Nation are the children of said Barbara Nation, to whom property is deest in said estate. vised by item 5 of said will. Barbara Nation is now 62 years of age, and there is no probability that any other children will be born to her, her youngest child being now 18 years of age.

The 262 acres of land supra cannot be divided without injury, etc., and if sold will have to be sold as a whole. There is also a finding in detail with reference to a certain ditch assessment against part of the lands which we have omitted, as there is no controversy as to the conclusions of law in relation thereto.

The judgment is as follows:

"It is therefore now adjudged by the court: That the following described real estate, situated in the county of Howard in the state of Indiana, to wit: [Setting out description 1 and 2 supral-be sold at public sale by said executor and executrix to pay the indebtedness found due in said special finding of facts; that is, the estate of said deceased. (Our italics.) That that portion of the same that should be paid by said executor and executrix cause said real estate to be duly appraised," etc. (Here follows the ordinary provision as to notice, place, and manner of sale.)

"From the purchase price received from the sale of the property in Greentown, Ind., the said executor and executrix are ordered to S., which existed at the time of the death of first apply the same upon the indebtedness to said L. F. * The court further orders the payment of all legitimate expenses of said estate, the amount of which has not been found ordered not to pay from said purchase price herein, and said executor and executrix are anything in the way of attorney's fees and costs of litigation in the matter of the three are described and set forth in said findings." suits known as the Wright litigation, and which

Upon these facts the court stated in its conclusions of law as follows (we substitute abbreviations of names as indicated supra): (1) From the facts found the court decides as matter of law that the 261⁄2 acres of real estate described in the complaint herein and the Greentown lot described therein belonging to the decedent at the time of her death are liable to be sold as necessary for the payment of debts, funeral expenses, and costs and expenses incident to the administration Before proceeding with our discussion of of decedent's estate. (2) Said real estate the questions attempted to be presented by embraced in the residuary clause of the will the appeal, we should state that the petition of said L. F. can be sold for the purpose o) filed by the executor and executrix to pay paying the inheritance tax, if any be found debts sets out the several items of indebteddue, on the 100 acres of land willed to Wil- ness included in the court's findings supra as ma, and upon the 100 acres of land conveyed the ascertained debts of the estate, but shows to G. & G., or upon any other real or person- that none of such items except that of S. al property of the said decedent at the time were filed as claims against said estate, and of her death. (3) Said real estate embraced alleges that the claim of S. was "a promisin the residuary clause and sought to be sold sory note given for the purchase of house in the complaint herein is liable to sale to and lot in Greentown." Such petition also pay taxes assessed against the 100 acres of sets out the facts in detail relating to the land deeded to Wilma. (4) Said real estate consolidated suits involving the care, custody, embraced within the residuary clause for and guardianship of Wilma, the employment which a sale is asked herein is liable for of said attorneys therein, the amount of a sale to make assets for the payment of taxes reasonable fee for their services therein, the assessed against the 100 acres of land deeded costs of the action, etc., and also alleges that to G. & G., and also for the payment of any "there will be a large inheritance tax to pay, other taxes accrued against the said decedent the amount of which and by whom the same at the time of her death, or that has since is to be paid your petitioners are unable to and during the administration accrued on state"; that the indebtedness of said estate, any of the personal property of the said de- including the costs of said consolidated suits, cedent. (5) The proceeds from the sale of the attorney's fees therein, and estimated the Greentown lot should be first used in the ditch assessments and taxes, but not includpayment of the claim of S. before applying ing the inheritance tax, exceeds the amount

of the personal estate of decedent in the sum of $3,366.78. To obtain the necessary funds with which to pay the debts the petitioners ask to sell tracts 1 and 2 supra, which pass under said residuary clause of decedent's will.

which an appeal is prosecuted, it must first appear that such court has jurisdiction of the subject-matter and the parties whose rights or interests are affected by such judgment. Whisler v. Whisler, 162 Ind. 136, 144, 67 N. E. 984, 70 N. E. 152; Michigan, etc., Co. v. Frankel, 151 Ind. 534, 50 N. E. 304: Abshire v. Williamson, 149 Ind. 248, 48 N. E. 1027; Vordermark et al. v. Wilkinson et al. (1895) 142 Ind. 142, 39 N. E. 441; Gates v. Weyenberg. (1915) 60 Ind. App. 241, 110 N. E. 227; Continental Ins. Co. v. Gue (1912) 51 Ind. App. 232, 98 N. E. 147, and cases there cited.

The motion of S. to dismiss this appeal challenges the jurisdiction of this court over S., because she is made an appellant rather than an appellee.

[2] As a general rule, parties adverse or hostile in the trial court remain so on appeal, and, for reasons hereinafter indicated, we agree with appellants in their contention that this is especially true where the appeal is prosecuted under sections 2977, 2978, Burns 1914. However, there are exceptions to this rule, even when applied to appeals taken under said sections of statute. Generally speaking, a party to the suit benefited by the judgment below and interested in maintain

In this court the parties which we have indicated supra would be referred to herein as appellants, join in an assignment of errors containing five separate assigned errors, which respectively challenge the first five conclusions of law supra. In the caption of such assignment they have joined with them as appellants S. and Wilma, making G. & G., Ex., alone appellees. S. has moved to dismiss the appeal, and she and other appellees are insisting on such dismissal on the ground that she and Wilma are made appellants, and are not named in said assignment of error as appellees; it being contended that S. is a proper and necessary appellee. Since the filing of said motion appellants have dismissed assignment of error No. 5, which challenges the fifth conclusion of law, viz., the conclusion favorable to S. Under a caption the same as that adopted by appellants in their assignment of error, appellees G. & G., Ex., assign cross-error in which they challenge the sixth conclusion of law supra. Wilma in person and by her guardian ading it is a proper appellee, and likewise any litem, W. C. Overton, has filed two assignments of cross-error, in which she challenges said sixth conclusion of law. In the caption of her first assignment she joins with her as appellants G. & G., Ex., as well as all the appellants in the original assignment of error, except S. She makes the same parties appellees and adds the name of S. In the caption of her second assignment of error, she omits the names of G. & G., Ex., as appellants. Otherwise it is the same as the first. The record also shows an attempt by G. & G., Ex., to file a supplemental appeal, and following this they file another cross-assignment of error in which they adopt the caption used by appellants. Appellants file a motion asking the court to reconsider the order heretofore made allowing Wilma to assign cross

error.

Upon these various motions and assignments and cross-assignments of error some 16 different sets of briefs have been filed, which are in a great measure devoted to a discussion of questions of practice, chief of which are those affecting the question of who are proper and necessary appellants and appellees to the several assignments and crossassignments of error.

We shall attempt to indicate and dispose of these several contentions only so far as we deem necessary to determine to what extent, if at all, this court has jurisdiction of the appeal, to that end that it may determine, in so far as it has the power to do so, the questions presented on the merits of the case. [1] It is fundamental that, before an appellate tribunal can proceed to review questions

and interested in overthrowing it is a proper party to the suit injured by such judgment appellant. This rule is well enough understood, but trouble results from its application, and this is due, at least in a great measure, to our system of practice, which has Woven into the chancery system, under which parties plaintiffs and defendants below may by their pleadings so change their relations that those associated and friendly in interest as to the issues tendered by the complaint may become hostile as to some issue tendered by a cross-complaint, and in such case the judgment or decree may be such as to present to the appellate tribunal independent issues to which coparties to the original action sustain antagonistic or hostile relations to each other as to a part of the judgment, and friendly relations as to other parts thereof, and hence are separated and divided in their interest in maintaining or overthrowing the judgment in its entirety; their respective relations to and attitude toward such judgment, whether friendly or hostile, depending on the particular issue or part of the judgment which is appealed from and attacked by the respective appealing parties. The difficulties growing out of such a situation are emphasized where, as in this case, an agreement of the parties permits all matters to be offered in evidence under the general denial to the complaint. A further complication results in the instant case from the fact that it is disclosed by the record that, while G. & G. were parties below in their capacity as executor and executrix alone, they in their petition attempted to tender issues on unfiled disput

[4] In any event appellants claim, and correctly so, we think, that this appeal is not controlled by said general statute supra, but that it is properly prosecuted under said sections 2977 and 2978, Burns 1914, which provides for an appeal in any matters connected with the settlement of decedent's estates. As controlling this question, see Rinehart v. Vail, 103 Ind. 159, 2 N. E. 330; Galentine v. Wood, Adm'r, 137 Ind. 532, 35 N. E. 901, and cases there cited. Under the last-ment of error were joint, and S. had joined named sections an appeal may be prosecuted by any person who feels aggrieved by the decision without joining any other person, by giving bond, etc.

event, S. was made a defendant to the petition to sell, and the judgment ordering the sale makes her claim the first to be paid out of the funds derived from the real estate on which she held her lien. She is therefore interested in maintaining the judgment, and we do not believe that it was the purpose or intent of the Legislature by the act suprà under which this appeal is prosecuted to relieve an appealing party from making appellees any persons interested in maintaining the judgment. By such act the appealing party is only relieved from joining with him as appellants those who are adversely affected by and interested in overthrowing the judgment.

Blankenbaker v. Bank, etc., 85 Ind. 459, 463; Scherer v. Ingerman, 110 Ind. 428, 437, 438, 11 N. E. 8, 12 N. E. 304), yet, after the allowance of such claims, and upon a petition to sell the real estate of such decedent, his relation changes, and in such proceeding to sell he becomes the representative of such general claimants as against the heirs and beneficiaries who are necessary parties defendants to such petition to sell, and hence their own representatives (sections 2848-2854, inclusive, Burns 1914; Stone v. Elliott, 182 Ind. 454, 460, 106 N. E. 710, 713). In such proceedings to sell the rule seems to be to the following effect: If an heir or beneficiary seeks to contest an allowed claim, it is the duty of the executor or administrator at [9] We therefore conclude that as to any least to notify such claimant and give him issue involved in and properly presented by an opportunity to assert and support the the petition to sell real estate and the judg. validity of his claim in such proceeding.ment rendered thereon S. was a necessary apRiser v. Snoddy, 7 Ind. 442, 446, 65 Am. Dec. 740; Scherer v. Ingerman, supra, 110 Ind. 438, 11 N. E. 8, 12 N. E. 304.

pellee, and hence that this court is without jurisdiction to disturb the judgment ordering the sale of said real estate. We should add in this connection that there is no claim that the ascertained and undisputed debts of the decedent did not amount to more than the personal property of her estate, and hence the order of sale was properly granted; the only way to prevent the order in such a case being by a compliance with the provisions of section 2889, Burns 1914. Ditton v. Hart, 175 Ind. 585, 595, 95 N. E. 119; Davis v. Kendall, 161 Ind. 412, 68 N. E. 894.

It is also true as appellants contend, that a claimant against an estate whose claim is secured by a lien on the real estate may waive his lien and take his chances with the general claimants. The filing of his claim as such general claim without asserting his lien will constitute such waiver, and in such case the lienholder becomes a general creditor, and in a proceeding by the administrator to sell the real estate to pay debts he is represented by such administrator along with This, in effect, disposes of appellants' ap the other general claimants, in the sense and peal and necessitates a dismissal thereof, at to the extent above indicated, and hence is least in so far as involves that part of the not a necessary defendant to such petition. judgment predicated on the issues tendered [8] It may be admitted also that section by and properly litigated and determined un2854, Burns 1914, requires only those lien-der the petition of the executors to sell said holders whose liens are deemed "invalid or real estate. discharged in whole or in part" to be made defendants to such petition. Other lienholders, however, may be made parties, and should be made parties, if the land is to be sold discharged of their liens.

These concessions in appellants' favor do not necessitate the conclusion they seek to draw therefrom. They, at most, might authorize the conclusion that S. was not a necessary defendant below, but the fact remains that the executors made her a defendant to their petition. While they need not have done so if she had in fact waived her lien, or if her claim or lien was undisputed and they sought to sell the real estate subject to such lien, yet, as before indicated, under the law the executors had a right to sell the real estate discharged of her lien, in which event she was at least a proper party defendant, and in order to bind her by any judgment to sell such real estate discharged of her lien, it was not only proper, but necessary, to make her a party defendant to such petition, even though the amount of her claim and the existence and character of her lien was set out in such petition. This apparently is what was done; at least such seems to be

This brings us to a consideration of another phase of this appeal incidentally referred to supra, and what we will have to say on this phase of the motion to dismiss will likewise dispose of the several cross-assiguments of error filed by G. & G., Ex., and by Wilma.

Appellants say in their brief, in effect, that there would be no litigation upon this petition to sell if the appellees had sought to pay undisputed debts only. The whole litigation arises out of the effort of these executors to unload upon the residuary legatees the debts and expenses which should be borne by G. & G. as individuals or as guardians of Wilma. This statement is in a measure borne out by the record; that is to say, the record discloses that the issues or questions attempted to be litigated in the trial court, and presented for review in this court, were: (1) Whether the inheritance tax, if any was found to be due the state, on account of the respective tracts of land, supra, deeded to G. & G., and to Wilma, should be charged against such land and paid by such grantees respectively, or paid out of the property given to appellants as residuary legatees under said will;