
    Bowen v. Bowen.
    1. Previous to the act of May 27, 1879 (76 Ohio L. 113), an action by the next of kin of a testator against his executors to obtain a decree declaring the residuary clause of the will void for uncertainty, and not showing plaintiffs to be entitled to any relief beyond such adjudication, cannot be maintained prior to the settlement of the estate.
    2. The act of April 17, 1857 (1 S. & C. 619, Rev. St. §§ 6195-6201), furnishes a complete and adequate remedy to the next of kin to recover their distributive shares of the estate where it can be shown that, in respect to any portion of his estate, the testator died intestate.
    Error to the District Court of Washington county.
    Charles Bowen died, owning a large estate, principally personal property. He made a will whereby, after several bequests to relatives and friends named, he provided as follows :
    “ After my decease and all debts and expenses are paid, and all of the above bequests are paid off, I empower my executors to dispose of any remainder at their discretion; and as I owe no debts save those of love and gratitude to my friends I authorize my executors to settle and compound with my debtors as in their judgment shall seem for the best of all concerned. I hereby appoint and constitute George Bowen, Hiram F. Devol, and Charles L. Bowen, executors of my last will and testament; and having full confidence that all trusts will be fully carried out and all bequests paid, it is my will that they proceed to settle the same without being required to make a schedule of my assets; and as I wish no auctioneer over my property, I wish them to dispose of the same by private sale or as to them may seem best; and if there should be a residue, I wish to have the same divided amongst my relatives and friends or given to charitable purposes or given to the poor as they see fit.”
    This suit was brought by the children and representatives of his brother, Ebenezer Bowen, who assert that they are entitled to a distributive share of the estate after payment of the debts and legacies. Ebenezer, had he lived, would have been entitled to a one-sixth share in a final distribution of the estate if no will had been made. Plaintiffs filed, a petition in the court of common pleas of Washington county, wherein they alleged that the disposition attempted to be made of the estate, after payment of debts and legacies, was ineffectual, and that the residuary clause of the will, above quoted, was void for uncertainty. They prayed that the legal effect and operation of the will as respects said residuary estate, the rights of plaintiffs and the duties of the executors, should be judicially settled and expounded; that such of its provisions as are void should be so declared; that the rights of plaintiffs, as heirs at law, or next of kin, should be established, and especially that the rules governing the executors in the final distribution of the estate should be determined and settled by decree. They also prayed for general relief.
    The executors answered denying that, as to any part of his estate, Charles Bowen died intestate, and they denied that any questions had arisen under said will, as to its construction or as to the powers and duties of the executors thereunder, except such as might have arisen in the minds of the plaintiffs. A demurrer to this answer was overruled, in the district court, the cause being in that court on appeal, and the judgment was that defendants go thence without delay.
    
      A proceeding in error in this court Was dismissed on the ground that the summons in error was issued and served more than three years after the rendition of the judgment below (36 Ohio St. 312); but, upon application, leave was given to amend, and it now appears that one of the plaintiffs in error is within the saving clause of the statute of limitations applicable to the proceeding ; and the question made is whether the saving of the statute as to this one plaintiff in error will inure to the benefit of all. If it does, this court is asked to construe this will and determine the rights of the parties under it.
    
      Jolvn Welch and Ewa/rt, Sibley da Ewa/rt, for plaintiffs.
    
      William B. Loomis and Harrison, Olds da Ma/rsh, for defendants.
   Longworth, J.

If we concede, for the purposes of this decision, that all proper parties are before this court, within time, we are still unable to see that the plaintiffs were entitled to any equitable relief in the court below. If Charles Bowen died intestate as respects his residuary estate, as claimed by plaintiffs, their rights are those of distributees or next of kin, and for the purposes of this discussion we may treat the will as though it contained no such clause as that above quoted.

The plaintiffs would be entitled to their respective distributive shares upon final settlement of the estate, and not until then. It could not be claimed that, in respect to the assets in their hands before final settlement, the executors stand as to them in the relationship of trustees. It is not questioned but that a suit may properly be brought in equity to establish the existence of a trust and to enforce its provisions, but here no trust exists, nor could a court of chancery, having declared the residuary clause of the will void, make any order against the executors, for the sufficient reason that the estate has not been settled.

It is true that in one sense an executor may be called a trustee, as any man may be so called who is bound to apply property for the benefit of others; but he is not a trustee in the technical sense. It is his duty to pay the creditors and legatees out of the assets, and he is personally liable if he neglects to do so. But there is no trust which affects the assets themselves.” Adams Equity, 251.

"Where no trust is involved, and no advice or guidance to an executor or other trustee is required, parties claiming under or against a will cannot maintain an action for the mere purpose of obtaining the court’s opinion as to its meaning or legal effect. Corry v. Fleming, 29 Ohio St. 147. A court of law is as competent as a court of equity to construe a will or other written instrument when rights sought to be asserted are dependent upon its construction. Here nothing seems to be asked of the court further than to expound the will and, to declare the rules by which the executors are to be governed in the discharge of their duties; and this request comes not from the executoi’s themselves but from the next of kin claiming as distributees. We ask, Gui "bono ? Most ample provision is made by statute for the assertion of these rights by action in the probate court or court of common pleas to recover the distributive shares to which plaintiffs may be entitled upon final settlement of the estate. 1 S. & C. 619. It is there provided that if the amount coming to any heir, legatee, widow, or other distributee shall be uncertain or in dispute, depending upon the construction of any devise, bequest, or upon any other question, these courts shall have full power to bring in all interested parties and to settle finally all matters in controversy, to render judgment, and to award execution. These provisions are incorporated in the Revised Statutes now in force. It may be observed that no claim is here made that the executors are insolvent, or that their bond is insufficient, or that the rights of plaintiffs are in danger of being lost to them.

We find it unnecessary to dispose of any of the questions argued by counsel, being satisfied, as we are, that, prior to the settlement of the estate, the interposition asked would be premature. The executors have the right under the statute to protect themselves by obtaining the direction and judgment of the court upon the meaning or effect of the will; but- this they do not ask, and therefore, of course, act upon their own risk and responsibility. We find no error in the action of the district court in dismissing the petition, for the reasons above stated.

Judgment affirmed.  