
    Collier v. Grimesey et al.
    A testator by his will gave to his widow the use of certain real estate during widowhood, and provided, that when- she ceased to be his widow “ the profits and benefits ” of the land should be equally divided between his children and a grandson. He then directed that when hi& son Samuel should arrive at the age of twenty-one years, the land should be sold, provided his wife’s widowhood should have ceased before that time, and directed the proceeds of the sale to be divided, to two of his sons and his grandson two shares each, and to the rest of his children one share each. He appointed executors “to act and see the accomplishment of ” his will, according to its true intent and mean-' ing. Held :
    
    1. That by the terms “profits and benefits” the testator did not intend to devise the fee.
    2. That the direction to sell the land was not contingent upon the termination of the estate of the widow before Samuel became of age; but that the direction to sell was imperative, and that the time of t-he sale was to be after Samuel became of age, and after the widow’s estate ceased.
    8. That under the direction to sell, the land is to be regarded, for the purposes of distribution, as converted into money; and that the children and grandchildren took, at the death of the testator, a vested interest in the proceeds of the sale.
    4. The duty of making the sale and dividing the proceeds is imposed by the will on the executors, and as one of them declined to qualify; the-duty of executing tlie trust devolved, under the statute, upon the other.
    5. The grandson having died, his personal representative, in an action to enforce the trust, ought to be made a party.
    Appeal, reserved in the District Court of Columbiana county.
    The plaintiff, ‘Maria Collier, is the half sister, on the part of her mother, of Oris M. Painter, deceased, and as such is the solo distributee of his personal estate. The.object of the petition is to enforce a trust alleged to arise under the fourth item of the will of Samuel Painter, deceased.
    The following is a copy of the will:
    “Whereas, I, Samnel Painter, of Perry township, in the County of Columbiana, and State of Ohio, being of a sound and disposing mind and memory, do make this my will, hearty] revoking all other will or wills heartrfore by mo made, this onely to be and remain my last will and testimoney in manner, as follows: ,
    “ 1st. I direct my funeral expenses <mcl and all my just depts to be paid.
    “2d. I bequeath to my two sons and grandson, nameley, Seth Painter, Samuel Painter, and Oris M. Painter, a certain tract of land, being and lying in Vanwart County, in the State of Ohio, containing three hundred and thirty two acres and seventy six hundredths, wieh land I hold by patent from under the hand of Martin Yan Burén, president of the United States, dated twenty-first day of August, eighteen hundred and thirty seven, to them and their hairs, for ever to be equeley divided between them, one hundred and eleven acres each.
    “ 3d. T bequeath to my three daughters, namZey, Louise Thomson, wife of John Thomson, Lucinda Grimesey, wife of John Grimesey, and Lydia Ann Painter, a certain, tract of land lying in Goshen township, Mahovng County, State of Ohio, containing thirty-two acres, to be equeley derided between them according to value.
    “ 4tb. I will and bequeath to my wife Mary, the hold and ■soald use of all my reail estate not hea/rtofore hequeth, so long as she remains my widow, and at tlie time she sesetk to be my widclow, the joroffets and benefits of the above said read estate shall be equeley devided between my six Children and my grandson Oris Painter, share and share alike.
    
      “ I direct that when my son Samuel Painter shall arive at the age of twenty-one years, that the above mention real estate shall be soald, (provided that my wife’s widd,ow-hood shall have seeth before that time,) and to be decided between them as follows: Seth, Samuel and Oris two shares each, and the, rest of my children one share each.
    
      “ And lastley, I constitute, nom,amate, and apoint my son Seth Painter, and my son-in-law John Grimesey, my executors, to act and see the accomplishment of this, my last will and testimony, aeordmg to the true jmtent and onenmg thereof. In witness thcvreof.\ I Tiearunto set my hand and seail this thirty-first day of August, in tlie year one thousand eight hundred and fov/rty eight.”
    The testator at the date of his will was in the 60th year of his age, and he died July 29, 1851. His will was duly admitted to probate in the same .year, and letters testamentary were granted to John Grimesey — the other executor named, Seth Painter, declining to accept the trust. The widow elected to take under the will. At the date of the will she was fifty-five years of age; and the testator’s son, Samuel, was, at that time, in the 9th year of his age.
    . The widow’s estate determined on May 18, 1874, by her death. The testator left six children surviving him, and liis grandson, Oris M. Painter, who was a son of a deceased son of the testator. Oris died September 17, 1864, intestate, and without issue, leaving the plaintiff his half-sister, as before stated.
    The petition states that all of the legatees named in the fourth item of the will, except Oris, “ conveyed away their interests in said premises, under said will, by deeds in fee, and that the defendant, John Pow, holds said interests, and is now in the possession of the same.”
    The petition also avers, “ that said real estate was devised to be sold by said will, and the proceeds to be divided among the legatees, and thereby became personal property, and that; on the death of said Oris M. Painter, all his pérsonal estate descended to plaiíitiff as his sister of the half blood, including; his interest of one-fifth in the real estate aforesaid, and that she, the plaintiff, is the owner of all said Oris M. Painter’s interest in said lands.”
    ■ The plaintiff prays, in substance, for the sale of the premises by the executor, and for general relief.
    ■ John Grimesey, the acting executor, and John Pow, are; made defendants.
    In the court of common pleas the case was heard on petition, answer and reply, and a decree was rendered for the plaintiff.
    On appeal, the defendants on leave withdrew their answer, and each filed a demurrer to #the petition on the ground that there was a defect of parties, and also on the ground that the facts stated did not constitute a cause of action.
    On the motion of the defendants the cause was reserved for. decision by this court.
    
      Clarke d> Me Vieher, for plaintiff:
    By the words “profits and benefits,” the testator did not create or give a fee. 3 Washb. on Real Prop. 450, 3 ed.; Reed, v. Reed, 9 Mass. 372; Blanchard v. Brooks, 12 Pick. 63; Earle v. Grim, 1 Johns. Ch. 499 ; 6 Johns. Ch. 70.
    Land directed' in wills or other instruments to be sold and converted into money, and money directed to be invested or employed in the purchase of land, are considered as that species of property into which they are directed to be converted. 2 Story Eq. §§ 790, 791; 792, 2 ed.; Craig v. Leslie, 3 Wheat. 563; 1 Vesey Jr. 320; Ferguson v. Stewart’s Executors, 14 Ohio, 140; Collier v. Collier’s Executors, 3 Ohio St. 369 ; Richey v.Jolvnson, 30 Ohio St. 293; 2 Ves. Jr. 271; 4 Johns. Ch 136.
    There is an imperative trust in this case. Adams Eq. 121, 285-298; Paul v. Compton, 8 Ves. Jr. 378; 2 Ves. Jr. 335; 1-Yes. Jr. 475 ; Hill on Trustees, 72.
    
      Kennett <& Ambler, -for defendants: ■
    ■.While we admit the general doctrine of equitable conversion of land into monéy, where there is an imperative trust to’ sell, &c., we deny that there is in this case an imperative trust. ' 1 Sugden on Powers, 3 Am. ed. 199.
    The use of the words “profits and benefits” created a fee. 2 Redf. on Wills, 711; 4 Kent, 536,4 ed.; 9 Mass. 374; Blackburn v. Brooks, 12 Pick. 47; Pattersons Ellis, 11 Wend. 298; 2 Washb. on Real Prop. 752.
    The court must do more than find that the language used by the testator is capable of two different readings, one of which will warrant the belief that he intended this land to be converted into money if Samuel arrived at 21 before the widow’s estate terminated, and the other of which will not. In 1864, when Orris M. Painter died, this was land, as a matter of fact,' and its actual condition cannot be changed in equity by any inference, argument, or doubtful language; but if it is to be changed, it must be done by something equally as certain as its then condition. 1 Story Éq. § 64; 17 Ohio St. 20; 2 Story Éq. § 1214; Tiffany & Bullard on Trusts, &c. 77.
    As to construction of wills, see Jarman’s 12th Rule; 13 Ohio St. Ill; 25 Ohio St. 477.
   White, J.

The main controversy depends upon the ’ construction of the fourth item of the will. The question is whether the sale of the lands therein provided for, is directed to be made on the arrival of Samuel at the age of twenty-one years, and after the termination of the estate of the widow; or, whether the direction to sell is made contingent on the ividow’s estate terminating before Samuel’s arriving at age. The claim of the defendants is that the power of sale is thus contingent ; and, hence, that as Samuel became of age before the determination of the estate of the widow, the provision directing a sale and the division of the proceeds ceased, on his arriving at age, to be operative. They further claim that on the determination of the estate of the widow, the fee of the land passed to the children and grandson of the testator, under the devise of the “profits and benefits” of the real estate. We do not question that a devise of the rents and profits, or of the “ profits and benefits ” of lands, without qualification or limit* ation, will impliedly carry the fee. But iu order to determine whether there is such qualification or limitation, we must look into the whole will, with the view of ascertaining the sense in which the terms -were used by the testator; and when such sense is ascertained to give it the effect intended. Such terms cannot bo held to carry the fee when it appears from other parts of the will that the fee is otherwise disposed of.

Whether the fee is otherwise disposed of, in the present case, depends upon the clause in item four, already .referred to, directing the land to be sold.

The clause not only directs a sale, but it makes a disposition of the proceeds of the sale. It provides that the proceeds of the sale shall be divided between the children and the grandchild as follows: To Seth, Samuel, and Oris, two shares each, and to the rest of the children one share each. According to the claim of the defendants, the bequests of two shares each to Seth, Samuel, and Oris are made contingent upon the estate of the widow terminating before Samuel became of age. If her estate ceased a day before he became of age, the land was to be sold, and Seth, Samuel, and Oris were each to have two shares of the proceeds. But if the widow’s estate should cease a day after Samuel became of age, there was to be no sale, and these bequests were not to take effect.

That such was not the intention of the testator seems to us to be clear. The object of the testator in postponing the sale until his wdfe’s widowhood should cease, was, it seems to us, to preserve to her, during her widowhood, the use of the land; and that the following is the true reading of the clause: UI direct that when my son Samuel Painter shall arrive at the age of twenty-one years, that the above-mentioned real estate shall bo sold, provided that my wife’s widowhood shall have ceased before that time,” that is, before the making of such sale.

The provision in the preceding clause, directing the profits and benefits ” of the land to be divided equally between his children and grandson, is not without effect upon. the construction we give to the subsequent clause. That provision was intended to dispose of the use or annual rents and profits of the land for the period that might intervene between the termination of the widow’s estate and the sale, whether’ her estate ceased before or after Samuel became of age.

The direction to sell the land is imperative, and, it seems to us, the duty of making the sale is imposed on the executors. There is no discretion vested in them whether the lands shall be sold or not. The direction is that the real estate shall be sold, and the proceeds of the sale divided among the persons designated.

The bequest is of money, the proceeds of the sale of the land, and not of the land. The beneficiaries under the will take the property with the character impressed upon it by the testator. In the present case they take it as money, and in the character of pecuniary legatees; and the fact that Oris died be-, fore the time arrived for making the sale did not change the nature of the bequest. Ilis interest became vested at the taking effect of the will, and, on his death, his right passed to his |>ersonal representatives. Reading v. Blackwell, Baldw. C. Ct. 166 ; Rinehart v. Harrison's Ex’rs, Id. 177.

That the testator intended that the sale of the land and division'of the proceeds should be made by-the executors, is shown, we think, by the language used in the last clause of the will. lie appoints his son, Seth Painter, and his son-in-law, John Orimesey, his executors, and directs them to act and see the accomplishment of this my last will and testament, according to the true intent and meaning thereof.” It seems to us the testator could not have intended to devolve the making- of the sale and distribution of the proceeds upon his heirs; but that he regarded this as a matter to be accomplished by his executors. , •

As one of • the executors refused to act, the duty of executing the trust devolved, under the statute, upon the other executor. S, & C. Stat. 1629, §■ 65.

The remaining question is, whether there is a defect of' parties. As the interest vested in Oris is to be regarded as per-, sonal' estate, his personal representative ought to, be made a party. He died intestate; hence, if there has not been, there, ought to be an administrator appointed of his estate, so that, to the extent that may be necessary, the money belonging, to.. his estate may be applied to the purposes of administration.

■ The interests acquired under the will by the other legatees having been, by them, vested in John Pow, he is the proper party to represent such interests.

If the property in question could be considered as land devised to Oris, it would have descended from him as ancestral property to those who were of the blood of the testator from, whom the estate came. But as it must be regarded as of the personal estate of Oris, while the heirs may have been proper, we are not prepared to say that they are necessary parties.

■ The demurrer on the ground that the petition does not show a cause of action is overruled ; and as to the ground of there being a defect of parties it is sustained.  