
    Francis v. Anthony et al.
    (Decided February 18, 1933.)
    
      Mr. Paul J. Gnau and Mr. B. J. Amer, for plaintiff in error.
    
      Mr. George A. Hoover, Mr. J. 8. Alce and Mr. B. J. Yon Nostran, for defendants in error.
   Lemert, J.

The parties in this case stand in the same relative positions held in the court below. The cause is submitted to this court, as it was in the court below, upon the pleadings, exhibits, and an agreed statement of facts. Briefly stated the facts are substantially as follows:

Charles W. Jackman died testate in the city of Canton, Stark county, Ohio, on June 24, 1929, leaving the plaintiff, Pearl N. Francis, and the defendants herein, as heirs at law. In his will he nominated James H. Robertson as executor, and after appointment and qualification as executor the said James H. Robertson died on May 11, 1931. On May 14, 1931, Leroy Jack-man was appointed and qualified as administrator de bonis non with the will annexed of the said estate. All of the debts of decedent, and the expenses of the administration of his estate, and the specific bequests contained in the will, have been paid. The real estate, which is the subject of this partition action, and described and referred to in Item 7 of the will, has not been sold. Item 7 of the will provides as follows:

“Item 7: I am the owner of the title in fee simple to a part of Lot Number Two Hundred Thirty-six (236) in the City of Canton, being 36 feet by 70 feet in the Southwest corner of said lot, the same being where my dwelling house is located, and I am also the owner of the title in fee simple to the West half of the South half of Lot Number Two Hundred Eighty-three (283) in said City of Canton, located on Cleveland Avenue Northwest and which premises is under a 99 .year lease, all of said real estate, I will and devise the same to James H. Robertson as executor of this my last will and Testament, in trust however, to be disposed of and distribution of proceeds made as follows :
“I give full and complete authority and hereby empower the executor of my estate with the authority to sell my said real estate or any other real estate that I may possess at the time of my decease, either at public or. private sale and upon such terms and conditions and at such time as my said executor may deem most beneficial to my estate, hereby giving full and complete power and authority to my said executor to execute all necessary deeds or instruments of conveyance to the purchaser or purchasers of the same, hereby ratifying and confirming all that my said executor may or shall do in the premises.
“After the payment of my just and valid debts, costs of administration, and the bequests as above provided in this my last Will and Testament, I give, will and bequeath the rest and remainder of my estate including all personal property, proceeds from sale of all of my real estate as follows, the same to be divided in equal shares and to and among the following persons :
“The one equal share to Osee Anthony.
“The one equal share to Marry Schilling.
“The one equal share to Grace Bachtel Grant. .
“The one equal share to my niece, Pearl Nichols (married name unknown to testator).
“The one equal share to Eoy Jackman.
“The one equal share to Curtis Pearson.
“The one equal share to Otis Pearson.
“The one equal share to Ada Jackman.
“The one equal share to Harry Bachtel and Della Bachtel, husband and wife, they to share equally therein and to the survivor of either if other be deceased at the time of my death.”

It is to be noted that Item 8 of the will reads as follows: “T hereby nominate and appoint James H. Eobertson of Canton, Ohio, executor of this my last Will and Testament.”

This error proceeding calls for a construction of Item 7 of the will. In looking to the will as a whole, we note that Item 2 of the will, the language of the testator, refers to the executor and not to James H. Eobertson. The three separate paragraphs in Item 7, with one exception, refer to the executor and not to James H. Eobertson. Prom a careful study of the will before us we are inclined to believe that the name of James H. Eobertson was inserted in paragraph 1 of Item 7 for the reason that the testator had in mind the naming of him as executor of his will, which he did by Item 8 thereof.

We are of the opinion that the language used by the testator in Item 7 of the will clearly and definitely created a trust estate of the real estate, and created it in the executor, and not in James H. Eobertson; that the title, both legal and equitable, to the real estate involved, is held by the executor as trustee; that only the executor as trustee has any title therein; and that it was to be held and disposed of by him as in paragraph 3 of Item 7 of the will, wherein the testator specifically provides that “proceeds from sale of all of my real estate” shall be distributed, and so on.

As to whether or not the trust created by this will is personal or general, we are mindful of the holding of the Supreme Court of Ohio in the case of Sowers v. Cyrenius, 39 Ohio St., 29, 48 Am. Rep., 418, wherein the court held in substance that the title to the real estate devised is in the trustees, and is subject to the trust, and that where one of the trustees named in the will died, and another removed to a place unknown, the probate court had power to fill such vacancies. And compare this case with the case of Rogers v. Rea, Trustee, 98 Ohio St., 315, 120 N. E., 828, wherein it was decided that the trust created in the will involved was personal. The same proposition has been considered and decided in Robbins v. Smith, Jr., Admr., 72 Ohio St., 1, 73 N. E., 1051, and in Gearhart v. Richardson, 109 Ohio St., 418, 142 N. E., 890.

That a trust estate will not fail for want of a trustee is an elementary proposition of law, and for that reason we will not enter into a lengthy discussion of the same. However, we cite Starr v. Forbes, 18 C. C. (N. S.), 176, 32 C. D., 670, and Section 10506-55, General Code, a section of the newly enacted Probate Code.

That an administrator de bonis non with the will annexed succeeds to the management of a trust is definitely decided in Mathews, Admr., v. Meek, 23 Ohio St., 272. The first and second paragraphs of the syllabus read:

“As a general rule, the powers of an executor are co-éxtensive with all the trusts devolved upon him by the will, and all acts done by him in executing such trusts will be regarded as done in his capacity as executor, unless it plainly appears, from the whole will, that the testator intended to create a special trust to be managed by the person named as executor in the capacity of special trustee.
“J. bequeathed to his executors, in trust, $10,000, to be put at interest by them for six years, and directed that at the expiration of that period the principal sum be appropriated by the ‘executors' to the objects of the trust, and named P. and J. as the executors of the will. P. having declined the trust, J. alone qualified as executor, and managed the fund for the period named, and then paid the principal sum to a contractor for the purpose of applying and appropriating it as directed by the will, took a bond for the performance of the contract, and then resigned. H,eld, that his successor with the will annexed succeeded to the management of the trust, and the right to sue upon the bond for breaches thereof.”

The proposition whether or not an administrator de bonis non with the will annexed succeeds to the management of a trust is discussed very nicely in Ohio Jurisprudence, vol. 18, Section 790, page 786: “A successor with the will annexed has the right to continue in the management of a trust given to an executor to put a certain fund at interest and then carry out a contract as directed in the will, and also to sue upon the bond of the contractor for breach of his obligation. The property of the estate must be sold by the administrator de bonis non, and the proceeds applied for the benefit of legatees, after the payment of specific bequests, if it is so stipulated in the will.”

This court, in Schmid v. Schmid, 35 Ohio App., 526, 172 N. E., 629, a very recent case involving the same proposition of law as is involved in the instant case, held as follows in paragraphs three to nine of the syllabus:

“3. Possession or immediate right to possession is essential to right of partition (Section 12026, General Code).
“4. Court will not disregard plain and lawful intention of testator as expressed in will.
“5. Testator has right, result being lawful, to provide how and when recipients of bounty are to enjoy his gifts, and court cannot accelerate and increase their estate.
“6. It is court’s duty to see that testator’s lawful intention be carried out.
“7. Court will not permit trust to fail.
“8. Court will not lend its aid to nullify provisions creating trust or purposely cause trust to end prematurely.
“9. Where will as construed by court created express, lawful trust, held, it must be left to expire by accomplishment of its purpose.”

So, construing the will in the instant case from its four corners, we reach the conclusion that the testator intended to create a general trust of the real estate in the executor, and that the administrator de horns non with the will annexed succeeded to this trust; that only the executor as such trustee has any title either legal or equitable in the real estate involved; that the language in Item 7 of said will is:

First, a positive direction to sell;

Second, an absolute necessity to sell in order to execute the will; or

Third, such a blending of real and personal estate by the testator in said will as to clearly show that he intended to create a fund out of both real and personal estate, and to bequeath said fund as money.

Holding these views, we conclude therefrom that the legatees have no right to possession, and therefore would have no right to partition. We therefore hold that the trial court, in refusing partition, was right, and that there is no error in the record of this proceeding prejudicial to the rights of the plaintiff in error.

Judgment affirmed.

Carver, P. J., and Sherick, J., concur.  