#### Heirs of Matthew T. Wright, Deceased, v. Elizabeth Minshall.

Will—a devise of land previously sold but not conveyed, passes the purchase money due on the land. Where a testator devises land, the legal title to which is in him, but which he has sold and given to the purchaser a bond for a deed therefor, the purchase money, when paid by the purchaser, will belong to the devisee.

Appeal from the Circuit Court of Clay county.

Mr. G. W. Henry, and Mr. F. B. Hitchcock, for the appellants.

Messrs. Cope & Boyles, for the appellee.

Mr. Jdstiob Breese

delivered the opinion of the Court:

Matthew T. Wright, in his lifetime, being the owner of certain lands in Clay county, in this State, on the 15th day of *585May, 1871, made his last will and testament, by which he devised to Elizabeth Minshall all Ms real estate, land and appurtenances in Clay county.

Prior to the execution of the will, the testator had contracted to sell his lands in Clay county, had executed a bond for a deed, and received the notes of the purchaser, which were unpaid at the time of his death.

He left a number of collateral heirs-at-law, and among them Elizabeth Minshall, his sister and sole devisee, under the will, of his real estate.

The notes having been paid after the death of the testator, and the fact reported to the probate court, the heirs-at-law applied to that court for a pro rata distribution of their proceeds, amounting to about eleven hundred and" seventy-five dollars.

That court directed the administrator to pay the entire proceeds to Elizabeth Minshall. An appeal was taken from this order, to the circuit court, where, on due consideration, the same was affirmed.

To reverse this judgment, the heirs-at-law, except Elizabeth Minshall, appeal to this court, insisting it was error to appropriate these proceeds in this manner.

These proceeds were the proceeds of the real estate, all which had been devised to Elizabeth Minshall subsequent to the contract of sale. There is no ambiguity in the terms of the will. They are plain, direct and positive. At the time the will was made, the testator held the legal title to this land, and was, to all intents and purposes, the legal owner of it, and had full power to devise it. Suppose the party who had agreed to purchase it, had failed to perform his contract, or the contract had been rescinded, it will not be pretended the land would have gone to the heirs-at-law. It would have been controlled by the will. By that, the legal title was devised to appellee, and there can be no question she is rightfully entitled to the proceeds of this legal title when sold and conveyed, and this, manifestly, was the intention of the testator. His intention was, to devise to appellee such interest as he had in or to *586arise from the land, and that was the purchase money, and, though described in the will as land, the devise passed the purchase money.

Woods v. Moore, 4 Sanford (N. Y.), 579, is a case in point. The judgment of the circuit court is affirmed.

Judgment affirmed.