
    POWER IN EXECUTORS TO SELL.
    [Circuit Court of Hamilton County.]
    Elizabeth Schaupp et al v. Thomas Jones et al.
    Decided, June 20, 1902.
    
      Win — Title to Real Estate, Proceeds from, the Sale of Which is Devised — Sale May Be Avoided, How — Implied Power in the Executors to Sell.
    
    
      1. Where a testator provides that land shall he sold and the proceeds thereof divided equally among four persons, no one of the devisees acquires title to the property under the will, but the devisees might, by all uniting, avoid a sale by the executor, and take the premises instead of the proceeds therefrom.
    2. The power to sell land and distribute the proceeds to devisees in accordance with the will is a power that may be inferred from the expression in the will, “firmly believing they (the executors) will carry out the directions of my will,” in the absence of express power thereunto.
    Giffen, J.; Swing, J., and Jelke, J., concur.
   The plaintiffs in error claim title to an undivided one-fourth, interest in certain real estate under the following provisions of the last will and testament of Benedict M. Mueller:

“My house in Cincinnati, 608 Fulton avenue (which I inherited from my dear late father, Nicholas Mueller, to be sold and the proceeds likewise to be divided into four parts, to-wit: First part to St. Rosa’s Catholic Church in memory of deceased parents and myself. Second part to my brother, Andrew Mueller, or in case of his death, to surviving family. Third part to Most Rev. Archbishop Elder, or his successor, in favor of orphans of the diocese. Fourth part to my cousin, Mrs. Elizabeth Sehaupp (nee Gebhart) or (in case of her death) to her children. Benedict M. Mueller.

Arnold Speiser and David P. Schorr, for plaintiff in error.

Charles T. Dumont, contra.

“P. S. I, as executor of this will,, appoint Rev. B. H. Engbers, Ph. D., of Cincinnati, .and Edward Powell, of West Jefferson, Ohio, without bond, firmly believing that they will fully carry out the directions of this will.”

In the first place, Elizabeth Sehaupp acquired no title to the real estate under the will, as the gift was a bequest of money, and although all of the legatees might, by uniting in the request, have avoided a sale by the executor and taken the premises instead, still no one of them could alone do so.

The executor having sold the house and lot, it is claimed that he did so without authority. There is no express authority conferred upon the executor to sell or divide the proceeds of sale of either the personal or real property, and after signing the will it evidently occurred to the testator that he had appointed no one to carry out his will. Hence in making the appointment he uses the language, “firmly believing that they will fully carry out the directions of this will.” While these 'words do not amount to a command or direction to the executors, they express the wish and desire of the testator that the person so appointed shall execute the will as he directs. In other words, they express such intention on the part of the testator.

We think, therefore, that the judgment should be affirmed.  