
    Sarah Greer and others vs. R. McBeth and Nancy Greer.
    
      yT'ill — Power to Sell.
    
    The testator directed that his widow, the stepmother of his children, and such of his children as may see fit, should have the possession and use of his real estate, until his youngest child should arrive at seventeen years of age, when he directed it to be sold and the proceeds divided equally between his widow and children ; and he authorized his executor, if he should find it more beneficial, to make the sale sooner, and divide the proceeds. The children left their home, and, the youngest being eight years of age, filed their bill to compel a sale of the real estate, on the ground that the widow had an illegitimate child born before her marriage, and that she was low in social piosition and of vulgar reputation : — Held' that the Court could not, under the circumstances, and against the wish of the widow, interfere with the discretion of the .executor, he not thinking proper to make the sale.
    BEFOBE -OABBOLL, OH., AT UNION, JUNE, 1861.
    The bill in tbis case was filed by tbe plaintiffs, wbo are tbe children of Jason Greer by a former marriage, against Robert McBeth, bis executor, and his widow, Nancy Greer. Tbe testator, by bis will, devised as follows:
    
      “ Third. I will and direct that my beloved wife, Nancy Greer, and said eight children, or such of them as may see fit, shall have and remain in possession of, and have tbe use of, all my real estate until my youngest child arrives at tbe age of seventeen years, and, upon my youngest child arriving at tbe age of seventeen years, I will and direct all my real estate to be sold, and tbe proceeds of such sale be equally divided between my said wife and eight children share and share alike; it being expressly understood that tbe provision made in this my will for my said wife is in lieu of all claims she may have in my estate.
    " Fourth. I will and direct after a time, if, in the opinion of my executor or administrator, it will be more beneficial to sell all my real estate than to retain it as provided for in the third section of this will, then and in that case I hereby authorize and direct them to sell the same, and divide the proceeds of such sale according to the provisions of the third clause of this my will.”
    The bill alleged that the plaintiffs had left the homestead, and had gone to reside with a relative in York District, where they intended to remain; that their stepmother was " low in social position and of vulgar reputation,” which induced them to leave, with the determination not to return.
    The defendant, McBeth, did not admit that the reputation of his co-defendant called for or justified their removal; he stated that he had advised Sarah A. E. Greer against it;' and that Nancy Greer, since her intermarriage with testator, had demeaned herself reputably, and is a member in full communion in the Baptist church. The defendant further stated that he is satisfied that at no time since last fall would the interest of the parties have been advanced by a sale of the land.
    The defendant, Nancy Greer, did not complain or wish to interfere with the exercise of the discretion given to the executor. She admitted the plaintiffs left her home, of which she had no knowledge until the night previous, and says she gave no cause of complaint, and was anxious that some of the children should remain; that she can barely make a support on the place.
    There was evidence offered to the effect that Nancy Greer had had an illegitimate child previous to her marriage, but since that time nothing was proved against her; that her child had not lived with her until plaintiffs left; and that she is a member of good standing in the Baptist church.
    The decree of his Honor is as follows:
    
      Caeroll, Ch. From the pleadings, and my notes' of the testimony, the facts involved may readily be collected.
    There seems to have been good'and sufficient reasons for the removal of the testator’s children from his plantation. By means of it they at least escaped the evils of low associations, and were restored to the higher social position to which they were entitled prior to their father’s last marriage. Perhaps such a removal was even demanded by a proper regard to the moral purity and virtuous rearing of the younger children of testator. The widow, with her natural child, has now the exclusive possession of the testator’s plantation. If she remains there, his children, (all of whom, except one, are infants,) without the slightest fault on their part, will be practically deprived of their father’s land until the youngest, now about eight years of age, shall have attained to the age of seventeen years. In the judgment of the Court the condition of the testator’s family renders it undoubtedly “ more beneficial” to all the parties in interest “to sell his real estate than to retain it,” as proposed in the third clause of his will. The authority confided in the executor to sell the land is regarded as not a mere naked power, but as a power in the nature of a trust. "If,” says Lord Eldon, “ the power is one which it is the duty of the party to execute, made his duty by the requisition of the will, he is a trustee for the exercise of that power, and not as having a discretion whether he will exercise it or not; and the Court adopts the principle as to trusts, and will not permit his negligence, accident or other circumstances, to disappoint the interest of those for whose benefit he is called upon to execute it.” The Court is much more ready to control trustees in the exercise of discretionary powers, which apply to the management of the trust estate, than in other matters of private opinion and judgment. Such powers involve, to be sure, a discretion on the part of the trustee, but not an arbitrary and capricious discretion, and the Court will enter into the consideration of the circumstances, and decide upon the propriety or impropriety of executing such power. Hill on Trusts, 494, 495. In Sugd. on Powers, 393, it is said that "a man may be intrusted with a trust to be effected by the execution of a power which, in that case, is imperative, and if he refuse to execute it, or die without having executed it, equity will carry the trust into execution.” “This,” he adds, “is the case where a power is granted by a will to trustees to sell an estate and apply the money upon trusts.” The conclusion of the Court is, that it was the duty of the executor, under the circumstances, to have sold the land of his testator, and that the plaintiffs are now entitled to have such sale effected under its order. Whether the interference of the Court would not have been authorized upon other grounds, is an inquiry not necessary now to be considered.
    It is ordered and decreed that the lands of the testator, mentioned in the pleadings, be sold by the Commissioner, at public auction, in one body or in separate parcels, as may be convenient, and at such time and place and upon such terms and credit as he may determine, after conference with the parties, due notice of such sale, by public advertisement, to be given, and the purchase-money to be secured by bond and adequate sureties.
    And it is farther ordered that the costs of the suit be paid out of the proceeds of the said sale, and that the residue of such proceeds be distributed among the testator’s widow and children in the proportions specified by his will, the shares of such of the children as are infants to be paid to their guardians respectively.
    The defendants appealed, and now moved this Court to reverse his Honor’s decree, on the grounds:
    1. Because the effect of the decree is to set aside the will, making a disposition of his estate different from what he directed.
    
      2. Because the right to sell the real estate was given by the will, and the time to sell was left to the discretion of the executor; and as there was no pretence or proof that his discretion was improperly used, he should not have been interfered with in opposition to his own judgment as to the time of the sale of the real estate.
    3. Because, from the case made, the Court had no jurisdiction, and the bill should have been dismissed.
    
      ■Dawkins, Qadberry, for appellants.
    
      Moore, contra.
   The opinion of the Court was delivered by

O’Neall, C. J.

The right of the testator to dispose of his estate, in such way as he might think best, cannot be questioned. He thought proper to give to his wife and the children living with her the use of his real estate tmtil his youngest child arrived at the age of seventeen years. This gift could only be defeated by a sale by his executor or administrator, who was in his discretion authorized to sell before that time arrived.

The executor has not thought it prudent or necessary to sell. It is now attempted to force a sale against his will, and against the wish of the widow, at the instance of the children of the first marriage, who have abandoned the home left for them by their father on the ground that their stepmother is an improper associate for them.

She is now as she was in the father’s lifetime. She has exhibited no new vices; she has not pursued a course in which she had indulged before marriage. She has reformed, and is now the member of a Christian church.

I do not perceive any ground' on which the Court can interfere with the real estate devised to her and the children.

‘It is therefore ordered and decreed that the Circuit decree be reversed.

Johnstone, J., concurred.

Decree reversed.  