Opinion by

This judgment must be reversed. The distribution made of the estate as if there were eight heirs living was proper, and the fact that Warren M. Fowler died after his father does not make his interest become a part of his father’s estate. If the appellees are entitled to recover, it is as heirs of Warren Fowler and not as heirs of their father, and the demurrer to the petition ought to have been sustained to that extent; in other words, — this claim has nothing to do with the case. If the agreement to divide Warren’s interest was based upon the consideration that these parties would become the sureties of Warren, the agreement must be declared on and the consideration alleged. The appellees, or one of them, F. K. Fowler, only claims about $55 for the lunatic in his pleadings, and the commissioner should not have gone beyond this in the absence of an amended pleading. It is unnecessary, however, to notice the exceptions taken, as the interest of Warren Fowler is made the basis of the settlement; and as it can form no part of the devisor’s estate the judgment is reversed and the cause remanded with directions to settle the estate of Felix Fowler as if no report had been made by the commissioner or judgment rendered.

This record does not show that the assignment of errors was amended, a.nd if it did we cannot well see how any error assigned affecting the judgment could fail to embrace the idea that the judgment had been rendered for more than the parties were entitled to recover.