
    *Robert Ferguson and Wife v. The Executors of William Stuart, deceased.
    Land directed by a will to be sold and converted into money, is treated as personal estate.
    Where land is thus directed to be converted into money, and the interest of one-third secured to the wife, and the residue to go to tho heirs of the testator, under the statute of descent and distribution, if there is no heir capable of inheriting, the entire interest is vested in the wife, and she may sustain a bill in chancery against the executors to compel an account and enforce the payment of the money to her.
    This is a suit in chancery, reserved in the county of Butler, and comes before the court on demurrer to the bill.
    The bill alleges that William Stuart died testate on March 9, 1833, and that his will was duly admitted* to record in Butler common pleas; that said Stuart died seized and possessed of divers parcels of real estate and chattel property; that testator, in said will, directed his executors to sell his real estate, and deposit the proceeds in some good bank, to accumulate interest on deposit; that a legacy of seven dollars per annum, forever, should be paid to Bethel Church; that his widow, Keziah, one of the complainants, and wife of said Bobert, should draw one-third of all the interest annually accruing on said fund, and that the money aforesaid should go to his heirs.
    That the defendants, the executors appointed by said will, sold all the real and personal estate, collected debts, payed off just demands, and made a settlement of their accounts at the October term of said court, 1836, by which it appeared that there remained in their hands $3,688.61, to be distributed agreeably to said will.
    That said Keziah was the lawful widow of Stuart, and was married to Ferguson in November, 1833; that they have received but $430 on account of annual interest, directed to be paid to Keziah, and that the balance is in the hands of said
    ^executors; that Stuart died leaving no children — no brother or sister, of whole or half blood — no father or mother, and no legal representatives of any or either of them, and no one of kin to, and of the blood of, said Stuart residing in the United States; and that petitioners are not aware of any heirs of said Stuart being aliens, and that if there be such alien heirs, they are barred from prosecuting their claim to said estate by statute regulating descent and distribution of personal estate, passed February 24, 1831, ten years having elapsed from the death of said testator; that said estate was acquired by said Stuart by his own labor, industry, and skill, and that no part thereof came to him by descent, or devise, or deed of gift from any ancestor. The complainants therefore claim that said estate shall be given to said Keziah, as the lawful wife relict of said Stuart. They further state that said executors had loaned out said sum of $3,688.61 at the rate of ten and twelve per cent, per annum.
    The bill calls upon respondents to answer as to the amount loaned by them, the rate of interest, etc., and prays that the whole amount, together with all interest and profit arising therefrom, shall be decreed to be paid to said complainants; also a prayer for general relief.
    To this bill there is a general demurrer, and joinder in demurrer.
    TnoMAS Millikin and George J. Smith, for complainants:
    We insist that the bequest in the will of William Stuart,- deceased, is one of money, and not of land. The intent of the testator was evidently to stamp upon the proceeds of the land directed to be sold the quality of personalty.
    It is a well-settled principle in equity that land directed in wills or other instruments to be sold and converted into money, and money directed to be employed in the purchase of land, are considered as that species of property into which they are directed to be converted. Croome v. Henning, 4 Hawks, 393 ; *Craige v. Leslie et al., 3 Wheat. 563; Doughty v. Bull, 2 P. Wms. 323; Fletcher v. Ashburner, 1 Bro. Ch. Cas. 501; Yates v. Compton, 2 P. Wms. 303; Edwards and wife v. Countess of Warwick, 2 P. Wms. 171; Gott v. Cook, 7 Paige, 521.
    In 3 Wheat. 563, Mr. Justice Washington reviews the loading decisions on the subject, denies the authority of those chat conflict, and establishes the principle as true in respect to all persons and for all purposes. It is founded upon the principle that equity considers that as already done which the testator in his will directed, and which, in conscience, ought to be done.
    The bequest being of personalty, the question arises, is Keziah Ferguson the “ heir ” or person entitled to receive under the will. The will was executed on March 6, 1833, and the law in force at that time provides, “That when the deceased shall not have left any legitimate child heir of his body, the widow shall be entitled to the whole residue of the personal property, after the debts, funeral charges, and other incidental expenses shall have been paid. 29 Ohio L. 236, see. 28.
    The bill avers that the testator “ died leaving no children — no brother or sister, of whole or half blood — no father or mother, and no legal representatives of any or either of them, and no one of kin to, and of the blood of, said Stuart, living or residing in the United States of America,” and that “petitioners are not aware of any heir or heirs of said.Stuart being aliens.” The averment is positive as to the non-existence of any children. In the case of a person dying intestate, without leaving a legitimate child heir of his body, the widow is entitled to the whole residue of the personal property after the payment of debts, etc. Tide 29 Ohio L., supra. Now if, as we insist, the decedent, William Stuart, as to the proceeds of the sale of his real estate converted into money, as provided in, and directed by, his will, died intestate, the same consequence would follow, and his widow would take those proceeds, under the statute of distribution, as heir quoad, that money, and not *under the will. The bill, however, in this case. goes further, and avers that Stuart died leaving no brother, sister, father, or mother, etc. It is evidently drawn under the erroneous supposition that other persons than legitimate children, heirs of the body of the decedent, might take personal property as heirs. It is urged by defendant’s counsel, in support of the demurrer, that the bill admits the existence of “ unknown heirs of William Stuart, who should be made parties defendant to the bill.” To this we answer : »
    1. The averment in the bill is positive as to the non-existence of children of the testator, who alone could be heirs before the widow. If, therefore, the bill did admit the existence of relations other than children, which it does not, it would be immaterial, kid might be rejected as surplusage.
    2. It is not stated in the bill that Stuart died leaving “unknown heirs. ” The law provides for making the heirs of any decedent defendants, whose names and places of residence are unknown. Swan’s Stat. 702, sec. 10. To make such persons defendants, their existence must be admitted. The bill denies having any knowledge, not of the names and places of residence of heirs, but of their very existence. If the defendants know of the existence of heirs, they may allege it in their answer, and make them parties. Swan’s Stat. 707, sec. 25. It is urged again by defendant’s counsel, that the statute of Ohio, 29 Ohio Laws, 236, making the widow the heir in the absence of children, applies exclusively to intestate estates. We admit the position to be correct; but we insist that, as to the proceeds of the real estate of decedent, he did die intestate, the provision in the will to the contrary notwithstanding. That clause of the will is in these words: “It is my will that the money aforesaid go to my heirs.” Now we claim that there is a void bequest, for the following reasons:
    1. Because of the uncertainty of the intended legatee; the word “heirs,” in the legacy, has a very indefinite meaning, and uncertain reference, and particularly so, when considered in connection with the facts stated in the bill, as to the want of brothers or *sisters or other relatives of the deceased. It is a settled rule, in the construction of wills, that where the will is uncertain as to the persons to whom bequests are made, the testator 
      
      will be regarded quoad hoc as intestate, and the property be distributed according to law. Rathmaler’s Admr’s v. Myers, 4 Dos. 215; Trippe v. Frazier, 4 Har. & Johns. 446.
    If a legacy of personal property fails, it is distributable as undisposed property. If the words of the will do not carry. the estate to some other person, it descends to the heir at law, however different the intention of the testator may have been. Schauber v. Jackson, ex dem. Bryant et al., 2 Wend. 12; Jackson v. Martin, 18 Johns. 31.
    2. The legacy is void, because the testator has made the same disposition of his property as the law makes. It is a settled rule of law, that, where the same estate is devised to the heir, in quantity and quality, as he would have taken by descent, if there had been no devise, the devise is void,, and the heir will take by descent. Hunt v. Earl of Winehelsea, 1 ^m. Black. 187; 4 Kent’s Com. 494, title Parties to Devise; Eulaws v. Eulaws, 3 Marsh. (Ky.) 230; McAfee v. Grilmore, 4 N. H. 391.
    The word “heirs,” as used in the will, means “heirs” quoad the property bequeathed — those that are designated by the law to inherit personal property. In Croona v. Henning, 4 Hawk. 393, B. W. having several children, to the elder of whom he had made considerable advancements, made his will, and, after devising real and personal estate to his wife and to his younger children, and confirming the advancements made to the elder, directed the residue of his estate, real and personal, to be sold, and the proceeds to be divided among his “ heirs, ” according to the statute distributing intestates’ estates. Held, that the word heirs, as here used, means heirs quoad the property, and not “children” “next of kin, ” or “heirs at law.” By it, is to be understood those whom the law appoints to succeed beneficially to the property in question. This decision is directly in point, and strongly authoritative. It settles the Adoctrine, that the nature of the property devised (whether real or personal), must determine the meaning of the word “ heirs. ” The fact that a legacy of one-third of the annual interest accruing on said fund has been given to the widow, does not alter her right. She must take it by gift of law, if not in consequence of the testator’s intentions. Starkey V- Brooks, 1 P. Wms. 390. It is further urged by defendant’s counsel, that the executors are made, by will, trustees of the widow of Stuart, during her lifetime, and that she and her husband have Co right to take the estate out of their hands. Here the widow is the cestui qui trust, and the one beneficially entitled to receive the whole amount of the trust fund. The smaller legacy of one-third of the interest is merged into the larger one of the gross sum of the trust money. It is as if the legacy of interest had not been given, and the widow claimed the whole amount of money under the law. The purpose of equity will be best subserved, by decreeing its direct and immediate payment to her. “It is settled in this court, that the person for whose benefit a trust is created, who is to be the ultimate receiver of the money, may sustain a suit in equity to have it paid directly to himself. ” Russell v. Clark’s Exr’s, 7 Cranch 69.
    For what purposo will the executors, as trustees, hold this money during the lifetime of the widow? We think that the reason of the rule fails, and that the object of the trust is fully satisfied when the money is paid over to the heir,' or residuary legatee and cestui que trust, who are blended in one person. Equity.kas always assumed and exercised this power over trust estates in analogous cases. In Craige v. Leslie, 3 Wheat. 578, whore the testator, in his will, devised and bequeathed his real and personal estate to John Leslie and four others, in trust to sell the samo, and then bequeathed the proceeds of his said estate so directed to bo sold, to his brother, Thomas Craige, to be remitted to him as the payments were made, it was held by the court, Washington, J., “That where the whole beneficial interest in the money in the one case, or in the land in the other, belongs to the person for whose use it is given, a *court of equity will not compel the trustee to execute the trust against the wishes of the cestui que trust, but will permit him to take the land or money, if he elect to do so, before the conversion has been actually made.”
    No argument was submitted for the defendants.
   Read, J.

In this case, had there been no will, the wife, as next of kin, would inherit the whole personal estate by the express letter i.f the act of 1831, regulating the descent and distribution of personal estate. This provision of the statute respecting personal estates that came not by descent, decreeing a deed of gilt, reads as jollows: “ That when any person shall die intestate, or who has heretofore died intestate, leaving no one of kin of the blood of the intestate; or if the kin or heirs of the blood of such intestate bo aliens residing out of this state, the estate of such intestate shall pass to, or be vested in, the husband or wife, relict of such intestate, unless such alien or aliens shall appear and prosecute his or her claim within ten years after the death of such intestate ; provided that the alien heir of any intestate who has heretofore died, shall bo allowed fifteen years from the death of such intestate, to assert his or her claim to the estate of the intestate.”

The bill sets up every fact necessary to give the estate to the complainant, as wife, if in fact it be personal estate; and the fact that the husband made a will, does not take the case out of the statute. The land named in the will was directed by the testator to bo converted into money, which has been done. This changes the realty into personal estate.

By the will, just debts are directed to be paid, and seven dollars per annum are given to the Bethel Church, for the support of the gospel. The money arising from the sale of the land is to be put at interest, one-third of which is to bo paid an'nually to the wile of the testator, during her natural life. The testator then declares, “ it is my will that the money aforesaid go to my *lieirs.”

The law determines who are a man’s heirs, and this leaves that portion of the estate not specifically disposed of by the will, to the statute of descents and distribution, to designate the heirship precisely as though no will had been made. That act, under the circumstances alleged in the bill, declares the wife an heir. The complainant, the widow of the testator, as legatee and heir, then takes the entire estate, by the express direction of the will, as well as by the operation of the act. The will, after having carried out certain interests, declares that the estate shall go to his heirs; the statute declares the same thing. The fact that a provision has been made for the wife by the will, does not prevent her from being an heir. Under certain circumstances she would not have been the heir; but there being none under the statute capable of inheriting, it declares her to be the heir. If we should hold, or, could hold, that to make the wife the heir violated the intention of the testator, it would be declaring that it was his intention expressed in the will, that if he had no heirs capable of inheriting but the wife, his estate should escheat to tho State of Ohio. Such construction would neither be in accordance with the intention of the testator, nor the spirit of our laws.

The complainant, then, having the whole interest, is entitled to tho relief sought against the executors — the Bethel Church being secured in its legacy. Demurrer remanded, leave to answer, and cause remanded for further proceedings.  