
    Hoyt et al. v. Day.
    1. A testator, whose estate consisted of a single tract of land, occupied as a homestead, and some personal property, devised and bequeathed to his wife one-half of all his real and personal estate, and the other half to his brothers and sisters, and the children of a deceased sister naming each, and specifying the proportion or share of each. He appointed an executor, and authorized and empowered him to sell and convey “all said real estate to the purchaser or purchasers thereof, if necessary for the purpose of distributing” it “among the devisees and legatees aforesaid.” Held, that this was a devise in fee, to each of the devisees by name, of an undivided estate in land, in the proportions specified, and not a bequest of the proceeds of said land.
    2. That the power of sale vested in the executor was a naked power only, not a power coupled with an interest in the land, and could only be exercised, if necessary, for the purpose of making distribution among the devisees.
    3. Each of said devisees holds his share as a tenant in common with the others, and is entitled to all the rights of such tenancy, subject only to the power of sale.
    4. The power of sale was not absolute. It could only be exercised, if necessary, for the purposes of distributing the estate. Its exercise must be limited to the purposes for which it was granted.
    5. A devisee may sell and convey his undivided share as real estate before distribution, but the purchaser takes the same subject to this power of sale, the same as his grantor, if its exercise beeomes necessary.
    
      6. The devisees, or their grantees, have each'the right to hold his share in severalty, if the same can be set off without manifest injury to the others; but if distribution can not be made in land, and it becomes necessary to sell, to make a proper division, then the executor is authorized to sell the whole, notwithstanding a prior conveyance of an undivided interest by one of the devisees.
    7. By proceedings in partition, the widow had her half assigned to her in land. Held, that the power of sale was not thereby defeated as to the other half, if the necessity existed for a sale, to make distribution among the other devisees.
    8. The defendant acquired title to an undivided share, by purchase of a devisee; the plaintiffs afterward purchased and received a deed for the whole, including defendant's share, from the executor. The plaintiffs can not maintain their title to the share of defendant, unless the necessity existed for a sale of the whole; and a court of equity will not enjoin proceedings in partition to have such share set off in land, unless it appears that such share can not be so set off, without manifest injury to the interests of his co-tenants.
    Error to the District Court of Huron county.
    This is an action in equity, by the plaintiffs in error to quiet their title to some eighty-six acres of land.
    On appeal to the district court, the petition ivas dismissed after full hearing upon the evidence; a bill of exceptions was duly taken, and error is here prosecuted to reverse that judgment on the ground that it is contrary to the law and the evidence.
    The plaintiffs aver, that they have the legal title to, and are in peaceful possession of, said land, and that the defendant Day,-claims to be the owner in fee of one undivided one fifteenth of the same, and has commenced proceedings in partition, under the statute to have his share set off to him.
    It is also averred that such proceedings in partition are wholly inadequate to the determination of their rights in the premises; and that Day can not maintain the same, because lie has no interest in this land, and has no possession thereof, either jointly with the plaintiffs or otherwise.
    The plaintiffs pray, that said proceedings in partition be ordered to stand for hearing with this suit, and that said Day be enjoined therein, until the hearing of this case, and upon final hearing, his title be declared null and void.
    
      To this Day answers, denying plaintiffs’ title and possession, and that said proceedings in partition are inadequate to the determination of the rights of the parties.
    lie sots out his own title as follows : that about the 11th of February, 1869, one William Baker died seized of this land, together with sixty-eight acres more, then a part of his farm, and leaving a will, which was duly probated, which was in these words:
    “Item 1. — I do hereby direct all my'just debts, and all proper charges against my estate, to be fully paid out of my personal property.
    Item 2. — I do hereby devise and bequeath one-half of all my real and personal estate to my beloved wife, Leah Baker, to be absolutely hers, with all the household furniture.
    Item 3. — I clo hereby devise and bequeath the other half of all my real and personal estate to Hannah Moffat, my sister; Sampson Baker, Spencer Baker, and Abijali Baker, my brothers; Horace Robinson, William Robinson, and Mary Davis, my nephews and niece, in the following proportions, to-wit: to my sister and my brothers above-named, each one-fifth part; and to my nephews and niece one-fifth part equally between them, excepting said furniture.
    Item 4. — I do hereby nominate and appoint Benjamin Davis, of Fairfield township aforesaid, executor of this my last will and testament, and do hereby authorize and empower him to sell and by deed duly executed to convey all said real estate to the purchaser or purchasers thereof, if necessary for the purpose of distributing my said estate among the devisees and legatees aforesaid.
    
    In testimony whereof, I have hereto set my hand, this 12th day of May, 1868.”
    He alleges that on the 14th of May, 1870, said Leah Baker, widow, commenced proceedings in partition, and such proceedings were had that the .share devised to her by said will was set off to her out of said real estate of which Baker died seized, being sixty-eight acres, leaving to the other devisees the remaining eighty-six acres now in controversy: that afterwards, on the 22d of July, 1870, said Mary Davis, who under said will was entitled to one undivided one fifteenth of the remaining half of the testator’s farm, with her husband joining, sold and conveyed her share to the defendant.
    The answer further states that ever since he thus became an owner he has been in possession as owner, which the plaintiffs well knew when they purchased an interest in the premises; that said Benjamin Davis, who was appointed aud qualified as executor of said will, knew of these proceedings in partition by Leah Baker, and consented to and advised the same, and that the rights of all parties can be determined in his proceeding in partition, and that defendant’s share can be set off to him adjoining his other contiguous lands without injury to the premises.
    His prayer is, that plaintiffs be enjoined from interfering with his proceedings in partition, and that his title be quieted.
    The plaintiffs reply, and deny that the executor had knowledge of or consented to the partition to the widow of her share, or that defendant’s interest can be set off in severalty without injury to the residue, or that defendant acquired any title or interest in the premises by purchase of said Mary Davis, except such as she as a devisee held, which was subject to the power of the executor to sell the whole, as provided in said will.
    They further aver that on the 1st of September, 1870, said executor, in execution of the power vested in him by the will, and for a valuable consideration, sold aud conveyed in fee simple to the plaintiffs the whole of said land,, whereby all the interest of the defendant was entirely divested ; to which sale he consented.
    The defendant’s proceeding in partition was commenced September 14, 1870, and plaintiff’s action in this case July 5, 1871.
    Upon final trial a bill of exceptions was taken, setting out all the evidence, but as the case turns upon the construction of the will, it is unnecessary to notice it in detail.
    
      
      Watson & Strong, for plaintiff in error:
    It certainly seems clear that the testator intended that his wife should have the independent right of election; that her interest should not be incumbered or embarrassed by those of the other devisees; that she might, without consulting them, eiect to take her half of the realty in land; and, when so electing, to have her portion set off' to her by the usual mode, leaving the other parties in interest to look exclusively for their rights to the half set apart for them. We think this line between these devisees is clearly marked by the expressed intention of the testator.
    The power iu the will is to sell, if necessary, for the purpose of distribution. As all other provisions in'wills, their testamentary powers are construed in such manner as best to carry out the purposes of the testator. It certainly seems fair so to construe this power, based as it is on a necessity, to be commensurate with the necessity. To give the wife her share, its exercise is not required. If the other devisees need a sale, and conversion of the land into money, in order to make distribution among them, apply the power to their half. The testator seems to have intended nothing more than this scope for the power.
    It may be laid down as a sound proposition that so long as any purpose of the testator remains to be accomplished by the power, it remains in force for the purpose of accomplishing that object. And when all the purposes for which the power was conferred upon the donee are worked out by it, the power itself ceases to exist. It is lost in the accomplishment of its objects. It was decided, in the case of Willis v. Shorrel, 1 Atkyn, 474, that a fine will not bar a bare, naked power.
    “ The donee of the power can not defeat his own grant. Nor can the donee of a power simply collateral, suspend or extinguish it by any act of his own.” 4 Kent’s Com. 386; Goodrich v. Cator, Doug. 477; Coke Litt. 237a, 2656; Digge’s case, 1 Co. 174a; Willis v. Shorrel, 1 Atkyn, 474; Sugden on Powers, 50, 67; West v. Barney, 1 Russell & Mylne, 391.
    
      And on the subject of powers, see Jackson v. Janson, 6 Johns. 98; Slocum v. Slocum, 4 Edw. 613; 4 Kent’s Com. 355; Lord Mansfield, Douglass Rep. 293; Lord Ellenborough, 3 East. 441; Jackson v. Veeder, 11 Johns. 169; Ricaud v. Williams, 7 Wheat. 59; Sharpstone v. Tillon, 3 Com. 51; Barclay v. Dupuy, 6 B. Mon. 92; Dorland v. Dorland, 2 Barb. 63; Miller v. Mutch, 8 Barr, 417; Meaking v. Cromwell, 2 Sandf. 512; Robert v. Whiting, 16 Mass. 186; Bloomer v. Waldron, 3 Hill, 361; Ward v. Barrows, 2 Ohio St. 241; Loyd v. Taylor, 2 Dallas, 223; Smith v. Folwell, 1 Binn. 546; 2 Redfield on Wills, 123; Reed et al. v. Underhill, 12 Barb. 113:
    
      H. & L. H. Goodin, for defendants in error:
    There was no unlimited power or discretion given to Davis. It was a power to be executed upon a contingency arising, to wit: “ If necessary for the purpose of distributing,” etc. If there was no necessity to exercise the power, then the occasion for its exercise could not have arisen. It was not a power to be exercised in any event. But a power to be exercised in a particular event. Darley v. James, 8 Wheat. 495; Allen v. De Witt, 3 Comst. 276, 278, 279, 281, 282; 4 Kent Com. 330; Cleveland v. Boerum, 27 Barb. 252; Ward v. Barrows, 2 Ohio St. 250, 251; Roseboom v. Mosher, 2 Denio, 68.
    Again, this power was limited to the subject-matter upon which it should be exercised. It was to sell and convey “ all said real estate . . . for the purpose of distributing my said estate among the devisees and legatees aforesaid.” He was giving this farm. He was not raising a fund to pay debts. The object was not to raise money for any purpose, but to bequeath this farm.
    We think that upon this point the case of Stablelon and Wife v. Ellison, 21 Ohio St. 527, is entirely conclusive. It shows that it was the whole farm that was to be sold, and not a part thereof.
    There can be no doubt but that William Baker devised this as land. This is what he supposed he was devising. The law on this subject is stated in 2 Story’s Equity, § 793. See also Craig v. Leslie, 3 Wheat. 563.
    The most of the cases relied upon by counsel for plaintiff are cases where a power was given to sell and divide the proceeds, not cases where the land was devised. The difference is most marked. The one is'a gift of the proceeds— money; the other is a devise of land. To carry out the intention in the first ease, the land must be sold. In the other, the sale of the land is the last resort, and only to be resorted to when absolutely necessary.
    
      Wickham & Wildman, also for defendants in error:
    I. The power contained in the fourth clause of the will has been extinguished, because : 1. The object of the testator has been accomplished. 2. By its object becoming unattainable.
    “A power to sell real estate in a will fails when its objects are unattainable.” Sharpsteen v. Tillow, 3 Cowen, 657. See also Ward v. Barrows, 2 Ohio St. 241.
    The object of the power has both been accomplished and become unattainable for the following reasons :
    The authority conferred upon Benjamin Davis, the executor, to sell the lands mentioned in the will of William Baker, was merely a naked power, and gave the executor no interest in the lands. They passed to and vested in the devisees, in the proportions provided in the will, there to remain, until divested by the proper execution of the power. Hill on Trustees, 235, 471, marginal. See also Hilton v. Kenworthy, 3 East, 533; 2 Sngdeu on Powers (6 ed.) 174; Peters v. Beverly, 1 How. H. S. 134; 16 Pet. 532; Burr v. Sim, 1 Whart. 266; Guyer v. Maynard, 6 Gill & Johns. 420; Shellen v. Homer, 5 Met. 462; Jameson v. Smith, 4 Bibb, 349; 4 Kent’s Com. 320; Sharpsteen v. Tillow, 3 Cow. 651.
    Courts in construing testamentary powers, like the one in this will, always endeavor to find the object intended to be accomplished by the testator. 3 Cow. 651; 6 Johns. 73. What was the object of-William Baker, deceased, in using the language contained in the fourth item of his will? It seems to us clearly and only to provide a convenient method or way by which the devisees, including Leah Baker, the wife, could partition the lands and sever the possession ; and a method to be exercised only in case it should become necessary for the purpose of distributing his estate. Can it be doubted that the devisees by their own act might have partitioned the premises among themselves by an agreement designating the part or portion each one was respectively to take, and by means of mutual releases or quitclaim deeds conveying to each his or her part so designated ? We think not. We contend that by the pai’tition proceedings the devisees, or their representatives, did sever the possession, so far as Leah Baker was concerned, her part being set off to her in severalty; and the portion belonging to the remaining devisees being one-half the land, being left in them as tenants in common, the court finding and declaring them, including the grantor of the defendant herein, to be tenants in common. All the devisees, or their representatives, were parties to that proceeding; all assented to the order of the court, and were satisfied with the division made. When the order had been made, and the partition made and confirmed in accordance with it, the object and desire of the testator had been fully accomplished. It no longer remained necessary for the executor to exercise the authority conferred upon him by the will, and consequently the power had become extinguished.
   Johnson, J.

The defendant’s title is derived from a conveyance by Mary Davis, one of the devisees, dated July 22, 1872.

The plaintiff’s title is derived from a conveyance by Benjamin Davis, as executor, dated September 1, 1872.

By the terms of this will, the testator bequeaths to each of the parties specifically named, an undivided share in an entire tract of land.

Each holds such share in fee. It is an estate in lands, and not in the proceeds of land. It is a devise to each by name, and not to the executor for each. It is an estate in freehold, descendible, devisable, and alienable.

As it is a.devise of an aliquot part of land in fee to each of the devisees, it follows that they are tenants in common, and entitled to all the rights of such tenancy, including the right to have partition, except so far as limited hy the terms of the will, if a sale becomes necessary.

By the terms of the sixth clause of the will, the executor is authorized and empowered to sell all of the real estate, if necessary for the purpose of distributing the estate among the devisees.

The land is not devised to the executor to sell and to divide the proceeds.

His power to sell is contingent on the necessity of having a sale, in order that a fair distribution among the devisees be made. If that can be done, no power of sale can be exercised against the wishes of any tenant in common.

The power thus vested in the executor is a naked power, not coupled with an interest in the land, and it could only be exercised for the benefit of the devisees, and only then if necessary to carry out the intention of the testator.

If the land could not be divided in the proportions named, so that each should have his share in land, then the executor might sell and distribute the money.

The entire estate and interest in the land, being specifically bequeathed, the primary right of each tenant in common was to have the land distributed.

As the language of the will, which confers authority to sell is not imperative, but is a simple power to sell if necessary, and as the legal title is in. the devisees, it follows that all the devisees might join in a sale, and thus convey the whole estate without the intervention of the executor.

It is equally clear, that each devisee has primarily a right to his share in land, if it can be set off'without injury to the interests of the other devisees.

This right to land is one that may be asserted by proceedings in partition, if necessary, but if distribution in land can not fairly be made, then it becomes a right to have money, and the power of sale may be made effective to convert the land into money.

By such proceedings, the widow had her half, set off in land, to which neither the executor nor the other devisees objected.

It was the clear intention of the testator that she should have land if it could be given her without detriment to the others interested.

If the commissioners, in her suit in partition, had reported that the farm was not susceptible of being divided into halves, then the whole might have been sold, either by the executor, or under order of the court under the statute, as would most conduce to the interests of all.

What is true as to the widow, is equally true of the other devisees.

It is claimed by plaintiffs, that the defendant, Hay, though claiming under a deed of prior date to that of the executor to them, stands in no better positiou than his grantor, Mary Davis, one of the devisees, and that she held her estate subject to this power of sale.

While it is true that each holds an interest in land, it is equally true, that neither is entitled to land, if a distribution thereof can not be made to him without injury to the others. In such case, any one may insist on a sale of the whole.

It is quite as evident that neither one nor a majority of the devisees could insist on a sale of the whole land and compel a minority to take in money, if the land can be divided, or if the shares of those wanting land can be given them without harm to the others.

When Davis, acting under the power of sale, conveyed the whole eighty-six acres (being the half of testator’s real estate, after the widow’s share was set off to her) no effort had been made to distribute in land, nor is it shown that such distribution could not have been made.

A majority did not want land, nor were they willing that Day should have his share in land; not because it could not be set off to him, nor because the residue could not be also divided, but because it would injure the sale of the residue.

They did not claim, nor does the evidence show, that to set Day's share off would injure the balance for the purposes of division, but for the purposes of sale.

• It was manifestly the intention of the testator, not only to give in land, if distribution could be made, but if that could not be clone, then to provide an easy and inexpensive mode of distribution, by converting the land into money and dividing it, without a resort to judicial proceedings.

"When the present action was commenced, the defendant had a proceeding in partition pending.

His title to the undivided one-fifteenth was subject only to this .power of sale, if necessary for the purpose of distribution. The title of the plaintiffs to this share, under their deed of a later date from the executor, depended on the same necessity.

If Day’s share could not be set off, under the provisions of the statute, then the executor, the other devisees assenting, might sell the whole, and Day would be compelled to take his share in money.

His right to a partition of land, the whole of which had been sold to plaintiff's before he commenced his suit for that purpose, and the plaintiff's’ right to claim the title to the whole, depended on a question of fact; that, is, could this share.be set off in land without manifest injury to the other tenants in common ?

If in that proceeding in partition the plaintiffs had filed a cross-petition in equity, containing the same allegations as are in the present petition, the present defendants might have been compelled to accept his share in money, if it appealed that his share could not be assigned in land.

The right of Day to have partition of the land, and the power of the executive to sell the whole could thus have been directly adjudicated.

In the present action the prayer is, that defendant’s pending proceeding in partition be perpetually enjoined, and plaintiffs’ title to the whole tract be decreed valid.

Its object is to prevent a partition to Day of his share, even though it may be done under the statute.

If granted, it denies all opportunity to determine the existence of a necessity for a sale of the whole, not because distribution in land can not be made to all, nor because Day’s share may not be set off to him without injury to the divisibility of the balance of the land, but because such assignment to him in land would injure the sale of the residue.

The other devisees did not want their share in land, but in money, and hence they insisted on a sale of the whole by the executor.

Until it is made to appear that Day’s share could not be given in land, the executor could not sell the whole.

The defendant claims that when the widow’s half was set off to her,'the power vested in the executor was gone; that the authority was to sell “ all said real estate,” and not a part, and as half had been assigned to the widow, there was no power to sell the remaining'half.

"We think the power of sale was given to effect a division in money, if one in land could not be made, and that the power to sell all the real estate included the power to sell this half, if the necessity existed to make distribution among the remaining devisees.

Upon the whole case, a majority of the court is of opinion that the district court did not err in dismissing plaintiffs’ petition upon the issues made and upon the evidence. As the effect of the evidence depended upon a construction given to the will, and as the weight of the evidence corresponds with the construction we have given to that instrument, the judgment of the district court is affirmed.

Day, C. J., and Scott, J., dissented from the judgment.  