
    CONSTRUCTION OF WILL.
    [Monroe (7th) Circuit Court,
    November Term, 1906.]
    Cook, Burrows and Laubie, JJ.
    Frank Haren et al. v. Katharine Block et al.
    Power of Sale to Maintain Widow and Children.
    Under the provisions of a will which contained the following clause: “I give, devise and bequeath to my widow, Katharine Block, in case she survives me, all my property both real and personal, during her natural life, and in the event that it should become necessary for the maintenance of my said wife, and of my children, whom she is directed to provide for, my said wife is hereby authorized to sell any or all of my said property — either real or personal, or both, giving a good, clear and indefeasible title thereto for said purpose,” the widow selling the real estate, specifying in the deed that it was necessary to sell the same for the maintenance of herself and children: Held,
    
    That, in an action in which the sale was attacked for want of authority upon the part of the widow, the burden is upon the attacking parties to show it was not necessary to sell the-property for such maintenance.
    [For other cases in point, see 4 Cyc. Dig., “Executors and Administrators,” §§ 832-857. — Ed.)
    [Syllabus by the court.)
    Appeal from Monroe common pleas court.
    Mallory, Jeffers & Sears, for plaintiffs:
    In tbe absence of fraud plaintiffs could rely upon the declaration of the donee, that the 'contingency had happened. Dean v. Loewenstein, 3 Circ. Dec. 597 (6 B. 587).
    Bight to execute the power and make the sale. Page, Wills 83S, Sec. 696; Griffin v.- Griffin, 141 Ill. 373 [31 N. E. Bep. 131]; Bishop v. llemple, 11 Ohio St. 277; Stableton v. Ellison, 21 Ohio St. 527; Doran v. Piper, 164 Pa. St. 430 [30 Atl. Bep. 306] ; Dean v. Loewenstein, 3 Giro. Dec. 597 (6 B. 587).
    Courts will not supervise a discretionary power conferred upon an executor by will. Ingles’s Estate, 76 ,Pa. St. 430; 18 Am. & Eng. Enc. Law (1 ed'.) 938, 939, note-,'Bunne.r v. Storm, 1 Sandf. Ch. 357; Leonard v. Mission Soc. 35 Hun. (N. Y.) 290; Doran v. Piper, 164 Pa. St. 430 [30 Atl. Bep. 306]; Stableton v. Ellison, 21 Ohio St. 527; Hamilton v. Jacobs, 2 Circ. Dec. 528 (4 B. 250) ; Scheidt v. Crecelius, 94 Mo. 322 [7 S. W: Bep. 412; 4 Am. St. Bep. 384]; Larsen v..Johnson, 78 AYis. 300 [47 N. W. Bep. 615; 23 Am. St. Bep. 404]; Stevens v. Winship, 18 Mass. (1 Pick.) 318 [11 Am. Dec. 178] ; Henderson v. Blackburn, 104 Ill. 227 [44 Am. Bep. 780] ; Sears v. Livermore, 17 Iowa 297 [85 Am. Dec. 564] ; Cranston v. Crane, 97 Mass. 459 [93 Am. Dee. 106].
    
      The cases have no application, either on the law or on the facts, to the case at bar. Bishop v. Bemple, 11 Ohio St. 277; Griffin v. Griffin, 141 Ill. 373 [31 N. E. Eep. 131] ; Moody v. Tedder, 16 S. C. 557.
    It is my will that they do so, exercising good judgment, and saving as much of it as possible for the children born to them. Paxton v. Bond, 12 Ky. Law Eep. 949 [15 S. W. Eep. 875] ; Crozier v. Hoyt, 97 Ill. 23; Swarthout v. Banier, 143 N. T. 499 [38 N. E. Eep. 726]; Matthews v. Capshaw, 109 Tenn. 480 [72 S. W. Eep. 964; 97 Am. St: Eep. 854]; Jennings v. Teague, 14 S. C. 229; Bunner v. Storm, 1 Sandf. Ch. 357; Perry, Trusts Sec. 511; McGavoch v. Pugsley, 1 Tenn. Ch. 418; 2 Williams, Executors 841. j
    Supplemental brief. Harp v. Wallin, 93 Ga. 811 .[20 S. E. Eep. 966]; Williamson v. Berry, 49 U. S. (8 How.) 495 [12 L. Ed. 1170] ; Hull v. Culver, 34 Conn. 403; Fleming v. Mills, 182 Ill. 464 [55 N. E. Eep. 373] ; Warren v. Webb, 68 Maine 133; Lamed v. Bridge, 34 Mass. (17 Pick.) 339; Price v. Bassett, 168 Mass. 598 [47 N. E. Eep. 243]; Stocker v. Foster, 178 Mass. 591 [60 N. E. Eep. 407],
    Driggs, Heinlein & Armstrong, and W. E. Moore, for defendants .
   COOK, J.

John Block, at the time of his death, was the owner of forty-three acres of land. It was unproductive and of little value for farming purposes. The buildings were in bad condition and the property altogether was not worth over $600 with a rental value of not more than $75 a year. There was a mortgage upon the property of about $500, past due.

On August 21, 1902, John Block died testate, leaving a widow and eight children, two of whom were minors. His will provided as follows:

Item first. “I direct that all my just debts and funeral expenses be paid.”

Item second. “I give, devise and bequeath to my beloved wife, Katharine Block, in case she survive me, all my property both real -and personal, during her natural lifetime, and in the event that it should become necessary for the maintenance of my said wife, and of my children, whom she is hereby directed to provide for, my said wife is hereby authorized to sell any or all of my said property, either real or personal, or both, giving a good, clear and indefeasible title thereto for said purpose.”

Item third. “I give, devise and bequeath after the death of my said wife, to all my children, share and share alike, all of my property which may be left after the death of my said wife.”

Item fourth. “T hereby appoint my said wife the executrix of this my last will, and direct that no bond be required of her as such executrix; and I hereby authorize he? as such executrix to sell and convey all or any part of my real and personal property, for the purpose in item second of this will set forth, on such terms and for such price as to her may seem best without the intervention of any court whatever.”

1 Soon after the death of John Block oil was discovered in the neighborhood of the farm and the widow and the six children who had attained their majority leased the farm to the Imperial Oil and Gas Company for oil purposes. Subsequently a guardian was appointed for the minor heirs and by order of the probate court the guardian made a lease to the same company, of the interest of the minors. The royalty reserved was one-eighth of the oil, and the lease of the widow and six children provided that the royalty should be paid to her, -"Katharine Block, during her life, but the lease of the guardian had no such provision.

After the execution of these leases the widow, Katharine Block, by contract in writing duly executed and recorded, sold and conveyed to the plaintiffs, Frank Harén and John liaren, for the sum of $600, which was paid to her, one-half of the one-eighth royalty upon the premises situated east of the road leading from "Woodsfield to Mil-tonsburg containing about twenty acres, stipulating in the contract that the sale was made under the power contained in the will of her husband, John Block, deceased — the sale having become necessary for the purpose of maintaining her and the children of decedent.- At the time this contract was made no oil had been discovered on the forty-three acre tract, but about six weeks previously oil had been discovered on the adjoining farm and soon after the making of the contract the lessee, Imperial Oil & Gas Company, brought in upon the part of the forty-three acres lying east of the road a large producing well. Thereupon the Avidow, Katharine Block, refused to sign a division order for the royalty coming to the Harens and she and the children and guardian wholly repudiated her contract on the ground that she had no legal authority to make the same. This action is .brought to compel her to sign the necessary division order and to quiet the title of plaintiffs in the royalty purchased by them.

The question, therefore, is: Had the widow, Katharine Block, authority to make the deed of sale to plaintiffs? It is admitted that the consideration paid was a fair one and that the widow acted in good faith in making ¡the sale. Defendants claim that- the burden is upon the plaintiffs to show the existence of such necessity. While upon the part of the plaintiffs it is claimed that the widow, the donee of the power, having sold the property and having set forth in the deed, that the necessity had arisen, is conclusive proof of such necessity and cannot be questioned by either the widow or the parties entitled to the fee after the death of the widow. Many authorities have been cited by counsel, tending to sustain each of these contentions; but in our judgment neither claim is correct.

There are three distinct descriptions of powers of the character of those contained in this will:

First. The power to sell where the judgment and discretion as to the necessity, is vested in the donee of the power. In such case where the power is exercised it is conclusive and cannot be attacked.

Second. Where the execution of the power depends upon a certain event, as death, birth, marriage, a certain date, etc. In such case, when the event has taken place the donee of the power has the absolute right to sell. ’

Thirdi Where the power to sell, as in this ease, depends upon the happening of an uncertain event, which may or may not exist at the time of sale, depending upon circumstances, then, even where there is no fraud, it must be shown when the sale is attacked that the event has happened justifying the sale.

It is said that this would be impracticable and unjust to the purchaser and furnish to the parties attacking the sale an unconscionable advantage; that the purchaser has a right to rely upon the determination of the donee of the power as to whether or not the conditions exist necessitating the sale; that to hold otherwise would create doubt and be in the interest of parties desiring to perpetrate fraud.

Such is the reasoning in the case of Doran v. Piper, 164 Pa. St. 430 [30 Atl. Rep. 306], in which it is said:

“If, under the law, that purchaser would be required to investigate whether the necessity existed, he might conclude that it did exist, she might conclude that it existed; and yet, if the law be as contended for by plaintiff, his title would depend upon as many juries as there were surviving children.”

We cannot conceive bow the reason of the trial judge who tried that case and which was approved by the Supreme Court is at all conclusive or even convincing. This condition arises in all cases where the facts are in doubt and there are severable interests.

How must it be shown that the uncertain event has happened that justifies the sale? We think, as under the provisions of this will, that the fact of the widow’s selling the property, and especially when she states in the deed that the event has happened which justifies the sale, that raises a presumption that she was authorized to make the sale and that'the 'Burden rests upon the parties attacking the sale to show that the event has not happened.

In the case of Doran v. Piper, supra, which was an action in ejectment, the court, under objection and exception, admitted in evidence the deed under which defendants claimed, and plaintiffs rested. The court charged in effect that there was no burden on' defendant to show that the land was improperly sold, and there being no evidence offered on the subject, gave binding instructions in favor of the defendants.

This, we think, is correct, and is in harmony with our holding. To the same effect is Swarthout v. Rainer, 143 N. Y. 499 [38 N. E. Rep. 726].

In that case the provision of the will was: “To have and to hold for her comfort if she need the same during natural life:” Held, that the burden of showing that the sale (a mortgage in this case) was not necessary for the widow’s comfort and support was upon 'the assailing party.

The authorities bearing upon both sides of the question have been' fully collected by counsel in their exhaustive briefs. We shall not refer to them in detail or attempt to analyze or reconcile the different holdings, but simply cite them: Page, Wills Sec. 696; Griffin v. Griffin, 141 Ill. 373 [31 N. E. Rep. 131]; Doran v. Piper, supra; Bishop v. Remple, 11 Ohio St. 280; Dean v. Loewenstein, 3 Circ. Dec. 597 (6 R. 587) ; Leonard v. Missionary Soc. 35 Hun. 290; Scheidt v. Crecelius, 94 Mo. 322 [7 S. W. Rep. 412; 4 Am. St. Rep. 384]; Larsen v. Johnson, 78 Wis. 300 [47 N. W. Rep. 615; 23 Am. St. Rep. 404] ; Stephens v. Winshop, 18 Mass. (1 Pick.) 318 [11 Am. Dec. 178] ; Henderson v. Blackburn, 104 Ill. 227 [44 Am. Rep. 780] ; Sears v. Livennon, 17 Iowa, 297 [85 Am. Dec. 564]; Crawson v. Crain, 97 Mass. 459 [93 Am. Dec. 106]; Swarthout v. Rainer, 143 N. Y. 499 [38 N. E. Rep. 726]; Matthews v. Capshaw, 109 Tenn. 480 [72 S. W. Rep. 964; 97 Am. St. Rep. 854],

The evidence in this case not only does not show that at the time of the sale it Avas not necessary to make the sale for the purpose of carrying ont the provisions of the will for the maintenance of the widow and children, bnt it conclusively shoAvs the contrary.

Finding and decree in favor of plaintiffs as prayed for in their petition.

Burrows and Laubie, JJ., concur.  