
    Hanes v. Munger.
    A testator devised certain lands to his son, providing in his will that the ' - lands should be taken at a cer,tajn,.pric¡B to be paid by the devisee in equal portion to his five children and K., his grand-daughter, in four equal installments, the bequests to be secured by the devisee by a mortgage on the lands, and providing further: “That the share of my grand-daughter, Laura J. Karch, shall be held by my son John, free from interest, until her arrival at the age of 21 years, at which time it is my will, if said Laura should not be living, that her share be equally divided among all my children aforesaid.”'
    The devisee accepted the lands in pursuance of the devise to him, and said Laura lived to the age of 22 years. Held: That the bequest to her became absolute when she attained the age of 21 years, and the same could be recovered by the administrator of her estate.
    Eeeoe to the District Court of Greene County.
    The defendant in error, as administrator upon the estate of Laura Jane Karch, brought his action in the court of common pleas of Greene county, against the plaintiff in error, John Hanes, to recover the share of said Laura of the estate of one Adam Hanes, under his will. The parts of the will upon which the question arises are as follows :
    “Item 1. I give and devise to my son, John Hanes, the farm on which I now reside, containing about one hundred and ninety-one acres, on conditions following, viz: The same to he taken by him at eighty dollars per acre, amounting in the aggregate to fifteen thousand two hundred and eighty dollars, and to be paid and accounted for by him to my children, Samuel B. Hanes, said John Hanes, Luther Hanes, Lucretia Tice, Mary J. Hanes, and my granddaughter, Laura J. Karch, in equal portions, as follows, viz: To be paid one-fourth cash in hand, one-fourth in one year, and one-fourth in two years, and the residue in three years, deferred payments to bear interest from probate of this will and to be secured by mortgage on said land, and as payments are made each payment to be divided equally among my said children and grand-daughter, my said son John having his equal portion with the rest.
    
      “Provided, however, that the share of my grand-daughter, Laura Jane Karch, shall be held by my son John free from interest until her arrival at the age of twenty-one years, and in the event of her death before such time, then until such time as she would have been twenty-one years of age, if living, also free of interest, at which time it is my will, if said Laura should not be living, that her share be equally divided among all my children aforesaid.
    “ Item 2. It is my will that all my personal property of every description be disposed of as follows, viz.: The same to be appraised by three competent, judicious freeholders of the county and sold at public auction according to law on nine months’ credit, and the proceeds of said sale, after the payment of my just debts and funeral expenses, to be equally divided between my said children and grand-daughter, my son John, however, retaining the share of my said grand-daughter, free of interest, until her arrival at the age of twenty years, and in the event of her death before that time, then until'she would have been twenty years of age if living, also free of interest, in which latter event her share to be equally divided between my said children.”
    The case shows'that John Hanes accepted-the lands in pursuance of'the devise-and paid to each of-the'legatees the amount provide'd'by the will, except Laura Jane Karch, and that-he never.'paid her any part of her. legacy, and never secured the- payment of it by mortgage as required by the will, :and. that she livéd past the age of twenty-two years. . : ' •
    The common pleas gave judgment for the plaintiff below, which judgment was affirmed by the district court.
    
      Qatch Wilson and Little ¿Shearer, for plaintiff in error.
    We claim that the real estate vested immediately upon the death of the testator, in his heirs under the statute of descents, and could be divested onty upon compliance with the said conditions — with each and all of them — and that they were never, in any way whatever, complied with as to said Laura'Jane Karch. See case of Dabney v. Manning, 
      8 Ohio, 821, 325, as to real estate vesting immediately on death of testator in his heirs. Also Gilpin v. Williamson et al., 25 Ohio St., 283, 295; Flstner v. Fife, 32 Id., 358, 359; Linton v. Laycock et al., 33 Id., 128,135-6; Brasher V. Marsh, 15 Id., 103. L'aura- J. Kareh, had she lived, the money not having been paid her, could have held and demanded partition of the land.
    We claim, also, that the real estate having thus descended at the death of the testator, to await the conditions of the will, and none of them having been complied with as to the interest of said Laura Jane, it remained in her' as real estate until the time of her death, when it passed' to ’ her heirs of the blood of the testator, as ancestral property to the exclusion of her brothers and sisters of the half blood.
    
      F. II. Hunger, for defendant in error.
    Now, by the fact of taking and accepting the land upon the terms of the devise, John Hanes became'Vested with the title in fee simple, and he assumed and became personally charged, and the land also became charged, by way of security, with the payment to the other'legatees, of their shares of the valuation put upon it by the tes't'ator’aS'ith'eir legacies. Clyde v. Simpson, 4 Ohio St., 445, 462; 'Wellons et al. v. Truax et al., 6 Id., 97; Taft v. Morse et al., 4 Met., 523; Gardner v. Gardner, 3 Mason, 178, 208; Hoover v. Hoover, 5 Penn. St., 351, 356.
    And he became liable personally in an action of assumpsit to the legatees for their legacies or shares. Felch et al. v. Taylor, 13 Pick., 133; Adams v. Adams, 14 Alien, 65; Gridley v. Gridley, 24 N. Y., 130; 3 Williams’ Executors (6 Amer. Ed.) bottom page 1931, 1932, note K.
   McCauley, J.

It is claimed fyy plaintiff in error that the lands of Adam Hanes descended to his heirs at his death, subject to be divested by a compliance by John Hanes, his son, with the provisions of the will of his father, by accepting the devise to him and complying with the conditions on which the land was devised. And that while he accepted the devise he never gave the mortgage security required by the will to Laura Jane Karch, and that therefore her inheritance in the lands never revested in John. The construction of the will contended for can not be the true one. The will, so far as i't required security for the bequest to Laura, was self-executing, dependent only upon the condition that John should accept the devise. He did accept, and the will itself furnished the security upon which alone it is claimed the devise could be effective. A mortgage was not necessary. The plaintiff could have maintained an action personally against John Hanes for the amount of the bequest to Laura Jane Karch, or could have proceeded to enforce it as a lien upon the lands devised. The interest of Laura Jane Karch in the estate of her grandfather under his will, was one-sixth part of it as a bequest in money, subject only to the condition that John Hanes should accept the lands of the testator on the terms provided in the will. That he did so accept, is abundantly shown. A bequest secured by a charge upon lands is not an estate or interest in lands, so that the interest that went to her under the will was such a demand or right as passed to her administrator at her death.

Judgment affirmed.  