
    BILES, Tee v. WEBB.
    Ohio Supreme Court.
    No. 20622.
    Decided April 4, 1928.
    1271. WILLS AND LEGACIES — 1197. Trusts and Trustees — 460. Equity.
    Testamentary trustee who is also beneficiary, cannot, by failing to pay off mortgages, defeat right of beneficiaries to their proportionate share of real estate.* Equity regards that as done which ought to have been. done.
    Error to Hamilton Appeals.
    Judgment affirmed.
   ALLEN, J.

A testamentary trustee who is also a beneficiary under the testamentary trust and is charged under the will with the duty of paying off mortgaes on real estate at the earliest possible date and distributing the estate to the beneficiaries cannot by failing to pay off such mortgages when there is sufficient income for such purpose and thus postponing the distribution, defeat the right of such beneficiaries to their proportionate share of such estate. In such case equity regards that as done which under the terms of the will ought to have been done.

(Marshall, CJ., Day, Kinkade, Robinson; Jones and Matthias, JJ., concur.)  