#### John T. Hayden, Executor, Appellee, v. Benjamin J. Hargan, Guardian, Appellant.

(Not to he reported in full.)

Appeal from the Circuit Court of Pulaski county; the Hon. Benjamin- W. Pope, Judge, presiding. Heard in this court at the March term, 1916.

Affirmed.

Opinion filed November 13, 1916.

Statement of the Case.

Petition in the Prohate Court by John T. Hayden, executor of the estate of W. T. Hayden, deceased, petitioner, against Benjamin J. Hargan, guardian of Loel, Verna, Needa and Zelma Hargan, minors, respondent, to require the respondent to pay over to the estate certain funds alleged to be due it under the will. From an order granting the petition, respondent appeals.

The testator having devised various parcels of real estate to his children, placing a valuation on each parcel, directed that the devisees should pay into the estate or receive from it such sums as would make their shares equal, taking the various devises at the valuation placed on them by the testator. One of the parcels was devised at a certain valuation to the “heirs” of a deceased daughter, naming her children, who were minors. The value of this parcel being in excess of the average value of all the devises, the executor filed a petition in the Probate Court in which the estate was being administered, asking that the court ascertain the amount necessary to be paid over by the minors to the executor, to equalize the devise to them in accordance with the terms of the will, and that upon such amount being ascertained and determined, that said guardian be required to pay to said executor the amount so fixed out of whatever fund should be in liis hands as guardian belonging to said minors, and that in case said guardian did not have sufficient funds *545with which to pay said amount, that then he be directed to file his petition in said court for leave to mortgage his wards’ real estate for a sufficient amount to pay the same.

Charles L. Bice, for appellant.

O. S. Miller and Wall & Martin, for appellee.

Abstract of the Decision.

1. Time, § 2 * —when Sunday is excluded in computing time for filing bill of exceptions. Where an order granting an appeal provided that a bill of exceptions should be filed within sixty days from the date of making the order, held that the sixtieth day falling on Sunday, the bill filed on the following Monday was filed in accordance with the order under clause 11, sec. 1, ch. 131, Rev. St. (J. & A. If 11,102), providing that the time within which any act provided by law is to be done shall be computed by excluding the first day and including the last, unless the last day is Sunday, and then it also shall be excluded.

2. Wills, § 282*—when grandchildren take per stirpes and not per capita. Where a testator devised separate parcels of real estate to his children, placing a valuation upon each parcel, and directed that the various devisees should pay or receive from the estate such sum as would make the share of each equal, and devised one of the parcels at a certain valuation to the “heirs” of a deceased daughter, naming her children, who were minors, held on a petition by the executor against the guardian of such minors to require him to pay to the estate the excess of such valuation over the average value of all the devises, that such minors took per stirpes and not per capita, and that the petition was properly granted.

3. Courts, § 105*—when Probate Court may exercise equitable jurisdiction in settlement of an estate. The Probate Court and the Circuit Court on appeal in probate matters have the right to exercise equitable jurisdiction in the settlement of an estate when necessary to further the qnds of justice, and it is only in extraordinary cases that the courts of equity will supersede the Probate Court in making such settlement.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, game topic and section number.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Presiding Justice Higbee

delivered the opinion of the court.

*5464. Courts, § 104 * —when Probate Court has jurisdiction to require repayment by heirs of excess over average value of devises. Where a testator devised certain parcels of real estate to his children, placing the valuation upon each parcel, and directed that the devisee should pay into or receive from the estate such sums as would make the share of each equal, and devised one of the parcels at a certain valuation to the “heirs” of a deceased daughter, naming her children, who were minors, held that the Probate Court in which the estate was being settled had jurisdiction of a petition by the executor against the guardian of such minors to require him to pay into the estate the excess over the valuation of the parcel devised to them, over the average value of all the devises.