
    Lessee of Phillis Williams and others vs. James Veach and others.
    Where, in a will, the testator confers power upon his executors, in form following: “giving them full and complete power, as I myself possess, after my decease, to dispose of all my estate, real, personal, and mixed, in the way and manner which they may think best calculated to carry into effect all the purposes specified, in this my last will and testament, except that no part of my estate shall be sold at public sale,” it is a power coupled with interest, and will be so construed, if the other parts Of the will seem to require it, in order to carry out the intention of the testator.
    This js a Writ of Error, directed to the Supreme Court of Hamilton County.
    The original action was brought to recover the possession of Lot number 155, in the city of Cincinnati.
    
      The lessors of the plaintiff, claimed title as the heirs of John Kidd. The defendants entered into the common consent rule, pleaded not guilty, upon which issue was joined.'
    At the May term of the Supreme Court of Hamilton county, 1847, the case was submitted to a jury, and a verdict was returned in .favor of the defendants, upon which judgment was entered.
    A bill of exceptions was then tendered by the plaintiff, and allowed by the Court, which is as follows:
    “ Be it remembered that on the trial of this cause, the plaintiff having offered testimony to show that John Kidd, in his life time, was the legal owner of the premises described in the plaintiff’s declaration, and that the Lessors of the plaintiff were his heirs at law, arid had always resided out of the State of Ohio, except Phillis Williams, who was a married woman until 1831, when her husband died: defendants offered in evidence the certified copy of the last will and testament of said John Kidd, dec’d, marked (A) and the deeds No. 8 and No. 6, from the the Executors of said John Kidd, dec’d, to Lewis Williams and to Elijah Pearson, and also the Record, under which the deed No. 6 was made, and also proved that the defendants were in possession, claiming under Lewis Williams and Elijah Pearson, all of which deeds, papers and depositions, are made parts of this bill. And thereupon, the counsel for the plaintiffs asked the Court to instruct the jury, that by the language of said will of John Kidd, the fee simple did not become vested in the Executors of said John Kidd, dec’d, and that said fee descended and vested in the heirs at law of John Kidd, dec’d, at the death of John Kidd, dec’d. That the said will did not confer any authority on the said Executors of John Kidd, to sell or convey said premises. That the said deed made by the Executors of John Kidd, to Lewis Williams, No. 8, was not authorized by the will of said John Kidd, if the said Lewis was not otherwise related to said John Kidd than from the fact of his having married Phillis Williams, who was proved to be one of the heirs of said John Kidd, and one of his heirs at law. All, and each of which instructions, the Court refused to give, to which refusal the plaintiff, by his counsel, excepts, and prays his bill may be signed and sealed, which is done. And the Court charged the jury, at the request of the defendants, that the said last will and testament of John Kidd, dec’d, did vest the fee simple in said land, in the declaration mentioned, in the said Joshua L. Wilson and Oliver M. Spencer, Executors of said John Kidd, dec’d; to which decision and charge the plaintiff, by his counsel, excepts, and prays this his exceptions may be signed and sealed, which is done and ordered to be made part of the record.”
    The will of John Kidd, which is referred to in the bill of exceptions, is as follows:
    “ I, John Kidd, of the town of Cincinnati, Hamilton county, and State of Ohio, knowing that it is appointed unto all men once to die, arid considering thp uncertainty of the time when death may happen, being sound in rirind, memory and judgment, do make, ordain and declare this instrument of writing to be my last will and testament, hereby revoking all other wills and testaments by me heretofore executed, and declaring this to be my last will in manner and form following, that is to say —
    It is my will that all my just debts and funeral expenses be paid out of the first moneys belonging to my estate, which may come into the hands of the executors, after my decease. It is my will that my executors shall apply and expend for the education of poor children and youth in the town of Cincinnati, Hamilton county, and State of Ohio, all the rents and proceeds arising from a Lease on Lot number four hundred and one, commencing on the front and main streets of said town, which Lease was executed to John Smith and David Loring, on the eighteenth day of August, in the year of our Lord eighteen hundred and eighteen, for ninety-nine years and renewable forever, for the annual rent of one thousand dollars. As it is my will that the annual rent of the aforesaid Lot, arising from the Lease aferesaid, shall be expended for the education of poor children and youth as aforesaid forever, I do hereby authorize my executors and give them full power to convey, by will or otherwise, to any corporation formed for literary purposes, the full power 1 of executing my will with respect to the education of poor children and youth, forever. The place for the school, the kind of building to be procured or erected, the qualifications of Instructors to be employed, and the description of poor children and youth to be admitted, I leave to the wisdom and prudence of my executors and their successors. And should my executors fail to execute the trust reposed in them as aforesaid, the same may be conveyed by their administrators,* &c., or should those to whom they may transfer the trust aforesaid, fail or neglect to execute the trust aforesaid, in behalf of poor children and youth aforesaid, then it is my will that the attorney for the commonwealth, for the time being, be and he is fully authorized to bring suit against the delinquents and compel them to execute the trust.
    I give and bequeath two thousand dollars to Mary Ann Lyle, daughter of John and Phillis Lyle, and my executors may spend so much of said bequest as they may think necessary for completing the education of said Mary Ann.
    I give and' bequeath two thousand dollars to Mary Esdell, daughter of Robert Esdell, dec’d, and Nancy Esdell his widow.
    I give and bequeath to Thomas, William and Robert, sons of Thomas Esdell, dec’d, and Nancy his widow, one thousand dollars each, making three thousand dollars in this bequest.
    I give and bequeath four thousand dollars to my neice Polly Yarnon, wife of Thomas Yarnon, and daughter of my brother Thomas Kidd; two thousand dollars of said bequest to be laid out in the purchase of lands for the benefit of said Polly and her legal heirs and representatives, and two thousand dollars to be paid them to aid them in improving said lands at their discretion.
    I give and bequeath two thousand dollars to Elizabeth Barnes, my neice, and widow of Joseph Barnes, deceased, and daughter of my brother Thomas Kidd.
    I give and bequeath two thousand dollars to my neice Catharine Wellfonton, widow of Robert Wellfonton, deceased, and daughter of my brother Thomas Kidd..
    
      I give and bequeath one thousand dollars to Nancy Esdell, widow of Robert Esdell, deceased, late of Butler county, and State of Ohio.
    I give and bequeath one thousand dollars to Phillis Williams, wife of Lewis Williams, and to the children of said Lewis Williams and Phillis his wife, I give and bequeath the following sums, namely: To John, two thousand dollars, to Lewis one thousand dollars, 'and to Sally one thousand dollars.
    It is my will that all the above legatees who are are of age, or who may be of age at the time, or shortly after my decease, receive their legacies from my Executors as soon as convenient, after a sufficient sum of money shall háve come into the hands of said Executors for that purpose; and with regard to such legatees as may be under age for several, years after my decease, my will is that their legacies be laid out in the purchase of land, which shall be tranferred to them when they shall come to legal years of discretion. And in order to carry this part of my will into effect, my Executors are authorized to employ a suitable agent for selecting, purchasing and feecuring lands for said legatees, and they are hereby empowered to transfer said lands to said legatees when they come of age.
    If my estate should be less than the amount of the above bequests, my will is that the legatees receive a dividend of the whole, in proportion to their respective legacies, provided that the sum appropriated for the education of poor children and youth be undiminished forever. ,
    If my estate should be more than the amount of the above bequests, my will is that my Executors distribute the overplus among my surviving relatives whom they may judge to be the most needy, and they are to use their discretion, as to its distribution, either making it in money, or other necessaries and comforts of life.
    I hereby constitute my friends the Rev. Joshua L. Wilson, and Rev. Oliver M. Spencer, of the town of Cincinnati, Hamilton county, and State of Ohio, the Executors of my last will and testament, giving them full and complete power, as I myself possess, after my decease, to dispose of all my estate, real, persona^ an<l mixed, in the way and manner which they may see calculated to carry into effect all the purposes specified in this my last will and testament, except that no part of my estate shall be sold at public sale.”
    The deed number 6, referred to in the bill of exceptions, is a deed from the Executors of John Kidd to Elijah Pearson, purporting to be made in pursuance of an order of the Court of Common Pleas of Hamilton county, for the purpose of fulfilling a contract, between the said Kidd and Pearson, by which Kidd agreed to sell and convey to said Pearson, one third of said lot number 155. A copy of the records of the proceedings of the Court of Common Pleas which resulted in this order, are referred to and made part of the bill of exceptions. The order itself is recited in the deed.
    Deed number 8, made part of the bill of exceptions, is a deed from the Executors of Kidd to Lewis Williams, dated 7th September, 1820, conveying to said Williams two thirds of said lot number 155. It is as follows:
    “ Whereas John Kidd, late of the county of Hamilton, deceased, by his last will and testament, appointed Oliver M. Spencer and Joshua L. Wilson, both of the same county, to be executors of his last will and testament, and thereby gave them, the said Spencer and Wilson, full power and authority to perform all necessary and proper acts in the premises: Know all men that we, the said Oliver M. Spencer and Joshua L. Wilson, executors of the said last will and testament, by virtue of the power vested in us, thereby to convey to such of the poor and needy relatives of the said John Kidd, as in our discretion we should deem best entitled to the same, such part or parcel of land belonging to the estate of said John Kidd, not particularly devised by him, or specified by his last will as designed to be appropriated to the use of any particular person, or for any particular object, and we the said Oliver M. Spencer and Joshua L. Wilson, executors as aforesaid, willing to carry the same into effect, in our said capacity, have, upon examination, found that Lewis Williams is properly entitled as one of the poor relatives of said John Kidd, to the benefit of such bequest. And whereas ... . said John Kidd, deceased, did in his last sickness, after completion of his said last will and testament, expressly authorize and direct his said executors to convey to the said Lewis Williams two third parts of lot numbered on the plan of the town of Cincinnati and county of Hamilton aforesaid, one hundred and fifty-five, situated at the corner of Columbia and Walnut streets, as an equivalent for the sum of one thousand dollars, which he the said John Kidd had previously devised by his said last will, and to one of the children of the said Lewis Williams, to wit: Lewis Williams, which intended legacy became lapsed in consequence of the death of said legatee previous to the death of the said John Kidd, then and there intended, and unequivocally expressed his desire and disposition to be should be reserved to the said Lewis Williams, the parent of the said legatee, in the donation to him of said two third parts of said premises described as aforesaid. And the said executors in their capacity as such, to wit: the said Oliver M. Spencer and Joshua L. Wilson, do hereby relinquish, release, quit claim, convey and forever transfer, in consideration of the causes and considerations aforesaid, to the said Lewis Williams, his heirs and assigns, so far as they the said executors have power and authority so to do, all the right, title, interest and claim of the said John Kidd, which was vested in him at the time of his decease, to the said two third parts of the said lot numbered one hundred and fifty-five, with the appurtenances to the same belonging, To have and to hold to him the said Lewis Williams, his heirs and assigns,” &c.
    There was also testimony referred to and made part of the bill of exception, which it is unnecessary to recapitulate for the proper understanding of the points decided.
    To reverse the aforesaid judgment of the Supreme Court of Hamilton county, this writ of error is prosecuted, and it is assigned for error,
    
      1. “ The Court erred in charging the jury that the will of John Kidd vested the fee simple title to the land therein described, in the executors therein named, and also in deciding that by the terms of said will, the heirs at law of said John Kidd are divested of the fee simple title to said estate.
    2. “ The Court admitted the will of said John Kidd, and the deeds number 6 and 8, and the record in evidence.
    3. “ The said Court refused to charge that the said will did not authorize the executors to make the deed to Lewis Williams.”
    
      Fox and Lincoln, for Plaintiffs in Error.
    
      Walker and Kebler, for Defendants.
   Hitchcock, J.

The record in this case shows that after the lessors of the plaintiff had exhibited testimony to show that John Kidd died seized of the premises in controversy, and that they were his heirs, the defendants to prove title out of the lessors of the plaintiff, and if possible in themselves, offered in evidence the will of John Kidd, a deed from his executors to Lewis Williams for a part of the premises, and also a deed to Elijah Pearson, from the same executors, for the residue of the premises in controversy. This ■ latter deed was accompanied by an abstract or copy of proceedings in the Court of Common Pleas, which resulted in an order to make the deed. These were all objected to, but the objection was overruled and the documents admitted. This is assigned as one of the errors of the Court. This assignment is not relied upon in argument, and I suppose it is abandoned. If it were not, there is certainly no good ground upon which this testimony could be objected to. The deeds were executed according to the forms of law, and the copy or transcript of the proceedings of the Court duly certified. The testimony was competent; as to its effect, that is a different question.

The record further shows that John Kidd made his will on the 22d of September, 1818, and that the will was approved in the proper Court on the 16th day of February, 1819. The deeds to Williams and Pearson were executed in 1820. It further appears that.Lewis Williams was the husband of Phillis Williams,, one of the lessors of the plaintiffs, that he came into the State at the request of John Kidd, and resided upon lot number 155, which was afterwards conveyed to him, until and at the time of the death of Kidd. That at' the time of the conveyance to Williams, the estate of Kidd was supposed ■ to be free from incumbrance, abundantly able to pay all the legacies, and that an amount of six or seven thousand dollars would be left for distribution among poor relatives. These facts are not embodied in the bill of exceptions, but they are derived from depositions .therein referred to, and made part thereof.. From the same source the fact is derived that upon his death bed the testator directed his executors to convey this identical land to Williams. It is objected to by the counsel for plaintiff, that this latter fact cannot be taken into consideration in determining the case, and undoubtedly it cannot. It would have been rejected on the trial had it been objected to. But although it can have no influence in the determination of the case, it shows that the executors supposed they-were carrying out the wishes and intentions of their testator.

After the testimony was closed, the plaintiff requested the Court to instruct the jury, that by the language of' said will of John Kidd, the fee simple did not become vested in the executors of the said John Kidd; and that said fee descended to, and became vested in his heirs at law, on the death of John Kidd. This instruction the Court refused, but did instruct the jury that by the will, the executors were vested with the fee, and that the same did not descend to the heirs. In this, it is claimed that the Court erred; and this assignment presents the principal question in the case, and it is a question that must be determined by a proper construction of the will.

In the instructions given by the Court to the jury, it was held that under the will of Kidd, his executors were vested with power to sell and convey his real estate. This ruling was ex-t0j but no*: assigned for error; and it seems to me that one could for a moment doubt that this power, at least, was conferred. But whether the power thus conferred is coupled with an interest, so as to vest the executors with a title to, or fee in the land, is a different question, and the one which is to be settled by the will. ■

In construing a will, the great object is to ascertain the intention of the testator, and this is to be gathered from the phraseology of the will itself; and in order to arrive at this intention, it is necessary to look into the whole instrument. It will not do to seize upon an isolated passage, and give it a controlling effect. Rules of construction, as recognized in the books, should be adhered to, and resort may be had to decided cases. But these cannot be conclusive, as it is not to be expected that any two wills will be exactly alike. After all, the sound judgment of the Court, in any given case, must be relied upon, to ascertain the meaning of the testator, from the language which he has employed.

The particular clause in the will of Kidd, which, as is claimed by the counsel for defendants, gives to the executors a power to sell his real estate, coupled with an interest in that estate, is the following: “ I hereby constitute and appoint my friends, the Rev. Joshua L. Wilson, and the Rev. Oliver M. Spencer, the executors of this my last will and testament, giving them full and complete power as I myself possess, after my decease, to dispose of all my estate, real, personal, and mixed, in the way and manner which they may think best calculated to carry into effect all the purposes specified in this my last will and testament ; except that no part of my estate shall be sold at public sale.” This, certainly, is strong language. The same power is given to the executors, after the decease of the testator, to dispose of his estate, which he himself had during his life time. This is the evident meaning; and they. are authorized to dispose of it, “ in the way and manner which they may think best calculated to carry into effect all the purposes specified,” &c. — an unlimited discretion to dispose of the property. Under this, may they not sell and convey ? may they not lease ? It is their duty to effect the objects specified in the will, but manner in which it is to be done, is left with them to determine. There is no restriction upon the disposition of the property, except that no part of it “ shall be sold at public sale.”

The counsel for plaintiff in error, contend that the word “ dispose,” used in this connection, does not mean to. sell, but that some other meaning must be attached to it. But the testator understood the word to mean this, at least, else why did he use the limitation at the close of the paragraph, except that no part of my estate shall be sold at public sale” ? If not to be sold at all, certainly nothing would have been said about public sale. In the ordinary-, and according to the common understanding of the wofd, the power to dispose of property, must be considered as a power to sell it; and when this entire paragraph is considered, it seems to me that an interest in the property itself is conferred, as well as a power to sel land convey it; that the intention of the testator was to vest the property in the executors, as it was vested in himself, it being their duty, however, so to manage, so to dispose of it, as to carry into > effect the purposes specified in the will. This intention is as clear as it would have been had the realty been devised to the executors to be sold; in which case, I suppose, there could have been no doubt.

The opinion that this is the true construction of this clause of the will, is strengthened by an examination of the entire instrument. In the first part of the instrument, the testator appropriates the rents of lot number 401, amounting to one thousand dollars yearly, to the education of poor children, and the executors are clothed'with ample discretionary power to carry out this bequest. The lot was leased for ninety-nine years, renewable forever. The reversionary interest remained in the testator, but by the operation of the, will, it was transferred to the executors; and they were authorized “ to convey the same by will or otherwise, to any corporation formed for literary purposes,” &c. There is, I believe, no controversy, but that the of lot number 401, or rather the reversionary interest, be-vested in the executors.

After making this disposition of this particular lot, and the rents issuing therefrom, the testator goes on to give legacies to a number of collateral relations to the amount of twenty thousand dollars or more. Some of these legacies are to be paid in money, in others, the amount is to be vested in land, and where the legatees are not of full age, the money is directed to be invested in land, but the land is not to vest in the legatee until of full age. Until such time, it must, as I suppose, vest in the executors, as it is to be purchased by them, or under their direction.

Money was to be raised for the payment of these legacies, in what manner the testator does not inform us. After having given his directions as to lot number 401, nothing is said about the disposition of any property until we arrive at the clause first commented upon. As the testator riiade no other provision for the payment of these legacies, it is but reasonable to suppose that when he gave the same power to his executors to dispose of his estate after his decease, that he himself had while in life, he intended that the same should be sold or otherwise disposed of, as might be best calculated to carry into effect all the purposes specified in the will, as well the payment of these legacies as other matters .specified. ’ Having made these bequests, the testator next directs, that if the estate should not be sufficient to satisfy them in full, they should be paid in proportion to the real value or amount of the estate. Then follows the following clause, “ If my estate should be more than the amount of the above bequests, my request is that my executors distribute the surplus among my surviving relatives, whom they may judge to be the most needy, and they are to use their discretion as to this distribution, either making it in money, or the necessaries and comforts of life.” ■

This paragraph furnishes additional evidence of the intention of the testator, that his entire property was to be at the control of his executors, to be by them, if in their discretion they deemed necessary, converted into money, and in a certain contingency a part of the money to be appropriated to the necessaries and comforts of life, for such of his needy relatives as they might deem proper.

It seems to the Court, that taking the whole will together, it furnishes a strong case, of a power conferred by will upon executors to sell real estate, and that this power is coupled with an interest. A much stronger case in fact, than the case of Dabney v. Manning, 3 Ohio R. 321; and upon careful examination we are brought to the conclusion that the Court did not err in instructing the jury, that by force of the will of John Kidd the premises in controversy were vested in fee simple in his executors, and did not descend to his heirs. If this be so, it follows that the lessors of the plaintiff had no title to the premises, and of course could not recover.

There is, however, another error assigned, which is that “ the Court refused to charge the jury that the said will did not authorize the executors to make the deed to Lewis Williams.”

It seems to us that there was no impropriety in refusing this charge. It was, in fact, for the purposes of this case, immaterial, whether or not that deed was made in conformity with the will. The fee being vested in the executors, if they made an improper disposition of it, it would not, in consequence of such improper disposition, vest in the heirs. The grantee might take the estate subject to all the trusts which attached to it in the hands of the executors, and a Court of equity might reach it, in his hands, for the purpose of appropriating it in accordance with those trusts. But all this has nothing to do with this case. The question here is, whethei; the fee simple interest in these premises descended to the heirs of John Kidd, or whether it passed by his will to his executors. We are of opinion that the latter is the case.

The Judgment of the Supreme Court is Affirmed.  