¶1ON REHEARING.
¶2Our attention is called by appellant to a provision of the will which gave the widow of the testator a life estate in all his real and personal property. The record discloses that she survived him and that afterward the executor turned over to her money and notes amounting to $800. For aught shown by the record the widow was still living at the time of the trial and such being the case it is too plain for argument-and follows from what we said in the foregoing opinion that the estate not being in condition for distribution as long as the life tenant survived, defendant Charles is in no position to oppose his legacy as a defense to a suit by the personal representative of the testator to enforce the payment of a debt he owes to the estate.
¶3And further it appears that (the widow being still alive) the indisputable evidence will not support the finding of the trial court that “there is ample per*8sonalty belonging to said estate to pay all claims against tbe same should any be presented and all other legacies and the costs of administration.”
¶4From the absence in the original brief and argument of appellant of any claim that the estate was not ready for distribution on account of an outstanding life estate we assumed that such estate no longer existed and that formal proof of its termination had been overlooked, especially since the court said nothing about such estate in its findings of fact and judgment. But we are bound by the record and since the points now pressed upon us are formally presented therein we are constrained to set aside our order of affirmance and to reverse the judgment and remand the cause for a new trial.
¶5It is so ordered.