
    David W. Stableton and Wife v. James Ellison and Others.
    1. Where in a petition for partition the demandant prays for equitable relief touchini the tide of the property, the proceedi ig is to be ívgtrded as a civil action, within the meaning of the code, and, as such, subject to appeal.
    2. J. E., by his will, disposed of his property as follows: “To my beloved son James Ellison, I give a id bequeath a tract of lan 1 on th ■ waters of Beasley’s Fork of Brush creek, containing one hundred and thirteen acres (on which John Morrison now lives, and also a man of the name of Sims lives at- present on said tract), to him my said son James, bis heirs and assigns forever. And all the rest of my estate, real and personal, I give and bequeath to my be oyed wife Mary El.ison. allowing her, said Mary, to make such distribution of my said estateasshe in her discretion may judge brsi and most advisable among my children, James, Mary, William, David, El zabeth. Margaret, Ann, Robert, Bratton, and John G-lisscon. It will be understood by my beloved wife, that if she should j tdge the one hundred and thirteen acres of land bequeathe 1 above to my son James should be equal to his proportion of my estate, she will not feel herself under obligation to give him more, as it is not my wi.l to give him said luid over and above an eq ini portion with the rest. And I do hereby constitute and appoint my brother Robert Ellison, executor, and my wife Mary Ellison, executrix, of this my last will and lestameat. But should my wife Mary mirryag.iin a'ter my decease, then and in that ease it is my will that she be divested of the power given her above of disiriburing my estate, and that my estate, boJi real and personal, in that case he divided as the law may direct, yet so as not to affect the title of my son James to the bind assigned to him above.” The widow survived the testator, remaining unmarried, and du.i.ig her lifetime conveyed to some of the children named parcels of the re.,1 estat-, as and for their respective shares thereof, but died seized of the remaining parcels.
    In an action by some of the children asking for a construction of the will, and an equitable partition of the real esta.e — held:
    (1.) That the wife took a life interest only in the real estate devised, with power to distribute the remainder among the children named in the will.
    (2.) That- the power so granted to the widow was not one of unlimited disci-,‘tion, but required her to distribute the entire properly among the children named, giving to each what she bona fide judged to be an equal po tion.
    (3.) That under the circumstances, the power never having been fu’ly exercised, equity requires that the entire estate should he apportioned equally between all tlie children named, the partial distributions already made, together with the devise t.o James, to stand as advancements, and be accouted for as such, but not beyond the amount of the equal portirn of the party so advanced.
    
      (4.) That in adjusting sucb advancements, valuations should be estimated as of the date of the widow’s death, and interest thereon accounted for from that time, but excluding from the estimate improvements made by the party.
    (,5.) Where the testator at his death Judd the legal title to lands the equitable estate in which belonged to another, the widow bad power, under the will, to convey the legal title to the person having the equity, and such lands will bo excluded from the distribution.
    Aureal. Reserved in the district court of Adams county.
    The will of John Ellison, which was probated on the 24th day of March, 1826, makes the following dispositions of his property : “ To my beloved son James Ellison, I give and bequeath a tract of land on the waters of Beasley’s Fork of Brush creek, containing one hundred and thirteen acres (on which John Morrison now lives, and also a man of the name of Sims lives at present on said tract), to him my said son James, his heirs and assigns forever. And all the rest'of my estate, real and personal, I give and bequeath to my beloved wife Mary Ellison, allowing her, said Mary, to make such distribution of my said estate as she in her discretion may judge best and most advisable among my ehildren, James, Mary, William, David, Elizabeth, Margaret, Ann, Robert, Bratton, and John Glasscon. It will be understood by my beloved wife, that if she should judge the one hundred and thirteen acres of land bequeathed above to my son James should be equal to his proportion of my estate, she will not feel herself under obligation to give him more, as it is not my will to give him said land over and above an equal portion with the rest. And I do hereby constitute and appoint my brother Robert Ellison, executor,'and my wife Mary Ellison, executrix, of this my last will and testament. But should my wife Mary marry again after my decease, then and in that case it is my will that she be divested of the power given her above of distributing my estate, and that my estate, both real and personal, in that case be divided as the law may direct, yet so as not to affect the title of my son James to the laud assigned to him above. And I do hereby revoke all former wills, &c., and do hereby ratify and confirm. this to by my last will and testament.”
    The widow remained unmarried, and died in 1866. During her lifetime she made conveyances to several of the children named in the will, of portions of the real estate, as and for their respective shares of the same ; but she left other portions of it undisposed of, and some of the children unprovided for.
    Among other tracts of land conveyed by her was one of 398 acres, which she conveyed to said William Ellison, not as his distributive portion, but as his own, reciting, in the-deed, that it was in equity the property of William, and that the legal title thereto had been vested in the testator, as trustee for William.
    The original case was a petition asking for a statutory partition among the heirs of the testator of those portions of the real estate not so disposed of by the widow, without taking any account of-the parcels already conveyed by her to some of them. Answers in the nature of cross-petitions were filed by some of the children, setting forth these conveyances by the widow, and asking for a construction of the will, and an equitable apportionment of the entire real estate. The plaintiffs then filed an amended petition, in. which they join in the prayer for a construction of the will; pray, among other things, to have the deed so made to William Ellison set aside, on the ground that he was not, in equity, the owner of the 398 acres; pray to have one of the-other deeds so made by the widow reformed, and for a pai’tition of the estate, agreeably to the rights and equities of the several parties under the will.
    The cause came into the district court by appeal, and was there, by agreement of counsel, submitted to the court, upon the written testimony appearing in the case, and reserved by that court for decision here. So far as the testimony is material, it is sufficiently noticed in the opinion of the courts
    A motion is now made by the plaintiffs to dismiss the-appeal, on the ground that the case is a statutory proceeding for partition, and not a civil action, and, therefore not subject to appeal.
    
      James H. Thompson for plaintiffs :
    1. The proceeding being a petition for partition, was not a civil action from which an appeal could be taken. Therefore the dirtrict court had no jurisdiction, and this court has none, in the case, and it should be dismissed. Barger v. Cochran, 15 Ohio St. 461.
    The answer and cross-petition setting up an equitable defence, cannot change the character of the case from a petition for partition to a suit in equity.
    2. As to the construction of the will. Under it the widow had the right to divide the testator’s estate at such times as she thought proper, but such division must be equal in quantity and quality.
    
      J. M. Wells also for plaintiffs :
    Under the will, the widow took a conditional life estate in trust, coupled with a beneficial interest, to last at her pleasure. The fee was, by descent, cast upon the children of the testator. The widow had power to remove her life estate, letting the heirs into a present fee, and divide her husband’s land among them. Any deed she might make only conveyed her life estate.
    If there be an interest and a power existing together in the same person, over the same subject, and an act be done without particular reference to the power, it will be applied to the interest and not to the power. 4 Kent, 334, 335 ; 2 Story’s Eq. sec. 1062 a and note.
    The deed made to William Ellison by Mary Ellison was executed by her as executrix, and not in pursuance of the power of distribution vested in her by the will. She thereby conveyed to William her life estate only in the land mentioned in the deed. It did not affect the fee, and is void as to John Ellison’s heirs.
    No inquiry can be made, under the pleadings, as to whether the land belongs, in equity, to the estate of William Ellison or not.
    His possession, for a time, was not such as would, or did, invest him with the legal title by prescription, as against his brothers and sisters.
    
      Qollins & Herron for Robert H. Ellison and Mary K. Ellison:
    No estate passed to Mary Ellison, under the will of her husband, except an estate for life.
    The power conferred on her, under the will, authorized her to divide the estate in whatever manner she pleased, without reference to the equality of the shares. Gibson v. Kniven, 1 Vernon, 66 ; Wall v. Thurborne, 1 Vernon, 352; Kemp v. Kemp, 5 Vesey, Jr. 849; Butcher v. Butcher, 9 Vesey, Jr. 382; Mocatta v. Lonsada, 12 Vesey, Jr. 123; Dyke v. Sylvester, 12 Vesey, 126; Graff and Wife v. De Turk, 44 Penn. 527.
    Nor need this power be exercised over the whole estate, or at any one time. 1 Sugden on Powers, 391; Simpson v. Paul, 2 Eden, 34.
    From these cases, as to the, power conferred on Maiy Ellison, we conclude,
    1. That her discretion in distributing the estate was unlimited.
    2. So far as she exercised this power, or used her discretion, it is valid to the full extent of its exercise.
    3. So far as she failed to exercise it, either as to property or children, the court will carry into effect the will, by the equal division of the remaining property, among the proper persons, always considering the distribution already made.
    4. The court will not undertake to review, or interfere with the exercise of the power of distribution by Mrs. Ellison, unless clearly satisfied that she acted fraudulently, or was herself deceived by misrepresentations.
    The deed from Mary Ellison to William Ellison, is a valid appointment of that land to him.
    Whether valid as an appointment under the will, the plaintiffs have received their full share, and therefore have no further rights in this case.
    Should the court be of the opinion that the deed to William Ellison is invalid, still, according to the testimony offered, William Ellison was the equitable owner of the land at the time of his father’s death, and his devisee is now entitled to the possession of this property, irrespective of the deed from his mother.
    William Ellison’s title, aside from the deed from his-mother, depends upon two different kinds of testimony: 1.
    Possession, under circumstances from which ownership will be inferred, and 2. The testimony of witnesses as to the admissions of those interested in the estate.
    The facts of this case, must satisfy all, that the survey was-located on warrants belonging to William Ellison, and that his heirs have acted in such a manner, that it would be unjust to permit them now to dispute it. McArthur’s Heirs v. Gallagher, 8 Ohio, 514; Duke v. Thompson, 16 Ohio, 34; Union Canal Co. v. Loyd, 8 Watts & Sargeant, 499; Peace v. Jenkins, 10 Iredell, 355; Bird v. Hewston, 10 Ohio St, 423; 1 Greenl. Ev. sec. 147.
    We have a right, in this action, to set up the equitable estate claimed for William Ellison. Harman v. Kelly et al, 14 Ohio, 502; Code, secs. 3, 93: Richardson v. Bates et al, 8 Ohio St. 257.
    In regard to the homestead of William Ellison, the heirs are entitled to the value of the ground, but not to the improvements made thereon by William Ellison.
   Welch, C. J.

The motion to dismiss the appeal must be overruled. Whatever may have been the character of this case at its commencement, upon the filing of the cross-petitions by the defendants, and the amendment of the plaintiff’s petition, it became and was a civil action, in which the parties sought' equitable relief, and were entitled to an appeal.

The case itself presents the general question, how and in what proportions should the testator’s real estate be divided among his heirs, or the children named in will, who are in fact his heirs. This can best be answered by considering ■. 1. What estate did the widow take under the devise to her? 2. What is the nature of the power of distribution so vested in her by the testator ? 3. What is the effect upon the rights of the parties of the widow’s partial execution of that power ?

We are of opinion that the widow took a life interest merely. The immediate words of the devise are such as at common law import a mere life estate. By our statute (S. & C. 1627, sec. 55) such words are to be held as passing a fee, unless the contrary intention appears in the will. We think the contrary intention does appear in this will. It appears in the fact of the testator’s “ allowing” the widow •and giving her “ power ” to distribute the estate among the children. The granting of such permission, and the giving of such power, are irreconcilable with the idea that the testator supposed he was imparting to her an absolute fee. If the property was absolutely hers, she would do with it as she pleased, without authority or permission from any one.

What was the nature or extent of the power given to the widow ? The several provisions of the will, taken together, show that it was not to be one of unlimited discretion. It was to be discretionary, perhaps, as to the times of making distributions, the particular parcels to be allotted to each child, and the valuations to be affixed to each parcel by the widow. But in three very material respects the power is defiued and limited. These are : (1) “ The estate,” the whole estate, and not merely a part of it is to be distributed. (2) It is tobe distributed “among the children” named, that is, as we understand it, giving to each child a part. {3.) The widow should aim to make the distribution “ equal ” between them. It is manifest to us, in other words, that the testator intended and expected the whole property to be divided among the ten children named, and that a bona fide attempt at equality of distribution would be made by the widow in the exercise of the power granted. He says, among other things, that it is 'not his “ will ” to give James the lot devised to him over and above “ his equal proportion.” The implication from this language is, that it was the testator’s “ will ” that James should have his “ equal proportion ” with the others.

Had the widow fully executed this power, her discretion, in the respect specified, if exercised in good faith, would not be interfered with or controlled by the court. But she did not fully execute the power; and the question remaining to be determined is, what is the effect of her partial execution of it ? Had she wholly failed to execute the .power, it is plain that the children named as beneficiaries would all have stood alike, and been entitled to an equal division of the property, the devise to James being regarded as if an advancement to him. Now we fail to see any good reason, or to find any well established authority, for departing from this principle of equality in cases where the power has only been partially executed — except to the extent that distributions already fairly made will not be revoked, either in whole or in part. Until the distribution was fully made the work was still in fieri, and the property not disposed of was still under the control and discretion of the widow. Until the distribution was completed she had a right to change the manner and proportions of distribution, with the changing circumstances, and her own changing opinions, with the exception named, that she could not recall the distributions already made. She could add to them, but she could not diminish them. It follows, of course, that these partial distributions are to stand, and be accounted for by their recipients, as advancements. In cases where such advancements equal or exceed the equal portion of the party, nothing more is to be received, and nothing is to be refunded. Where they fall short of such equal portion, they are to be fully accounted for, with interest from the proper date. That date, in the present case, we think is the date of the death of the widow, the time when her estate terminated, and that of the distributees was to begin. The valuations of the several parcels of property should also, as we think, be fixed as of the same date, but exclusive of improvements made by the parties in possession. Neither the use of the property during the life time of the widow, nor the interest on its valuation during that time, is to be accounted for, as the life interest belonged to her, and not to the fund which she was to distribute, and the distributees are indebted to her, and not to the testator, for the life interest in the advances so made to them. -

The 398 acre tract, conveyed by the widow to William, we do not regard as belonging to the estate. The evidence shows that it was claimed and controlled by William, and treated by the testator in his lifetime, as the property of William. It has eyer since, till the bringing of this suit, been regarded by all parties as his ; and he has been in actual possession of it for more than thirty years. These facts, in connexion with testimony in the case, tending strongly to show that the tract in question was entered by the testator, upon a land warrant belonging to William, leave no doubt in our minds that the title to this tract was held by the estate in trust for William, and that the deed made by the widow to him was in fact, what it purports to be, the mere execution of the trust.

A decree may be taken accordingly, and the cause remand* ed to the district court for its execution.

White, Day, McIlvaine and West, JJ., concurred.  