
    P. B. Swing and W. C. Mellen, Executors of Rebecca J. E. Townsend, v. E. B. Townsend et al.
    1. An action by executors against devisees, distributees, and beirs, asking the direction and judgment of the court touching the construction of the testator’s will, and the duties of the executors thereunder, and praying, among other things, for an order to sell lands, in pursuance of the supposed intention of the testator, for the payment of legacies, is appealable from the Common Pleas to the District Court.
    2. The appointment of a receiver while the cause is in the Common Pleas, is not vacated or superseded by an appeal to the District Court, and the powers and duties of the receiver still continue, notwithstanding the appeal.
    
      Appeal. Reserved in the District Court of Clermont county.
    This is an action brought by the executors, under section 8 of the act of April 17, 1857 (S. & C. 621), against the devisees, distributees, and heirs of the testatrix, asking the direction and judgment of the court as to the true construction of the will of the testatrix, and the rights of the defendants thereunder, and praying, among other things, for an order to sell the real estate for the payment of the legacies and for distribution. The case came into the District Court by appeal, and having been reserved for decision here, a motion is now made to dismiss the appeal, on the .ground that this, is a statutory proceeding to sell lands for the payment of debts and legacies, and therefore not appealable.
    Receivers were appointed and qualified while the cause was in the Common Pleas, and a motion is also made by the plaintiffs for the appointment of receivers by this court, in case the appeal shall not be dismissed, on the supposition that the office of the receivers was vacated by the appeal.
    
      Sioing, Méllen-Ward, for the motions.
    
      Pugh, Wm. Disney, King $ Thompson, contra.
   By the Court.

These motions must both, be overruled-This is no mere statutory proceeding for the sale of lands to pay debts. It is an action to obtain the direction and judgment of the court as to the construction of the will, .and the duties of the executors in carrying the same into effect. The prayer for an order to sell real estate is merely incidental thereto, and in pursuance of the supposed directions of the will. The office of the receivers was not vacated by the appeal. The receivers in the Common Pleas .still remain in office, notwithstanding the appeal.

Ordered accordingly.  