
    Aldenderfer, Exr., v. Spangler et al.
    
      Executors and administrators — Sale of real estate — Time and manner controlled by will — Power to sell not accelerated where life estate conveyed, when — Sale not ordered if testator’s intention thereby frustrated.
    
    1. Power to sell conferred on executor can only be exercised in manner and at times prescribed in will.
    2. Where will authorized executor to sell land only after death of widow and to divide proceeds among children, voluntary conveyance of life estate by widow held not to have accelerated remainders, and hence there was no acceleration of power to sell.
    3. Where testator provided that land should be sold during . life of widow but executor retain sufficient proceeds for upkeep of property which widow was to occupy for life, since sale would render inoperative provisions for widow’s support, sale thereof would frustrate testator’s intention and would not be ordered.
    (Decided January 19, 1926.)
    
      Appeal: Court of Appeals for Pickaway county.
    
      Mr. Barton Walters, for plaintiff.
    No counsel of record for defendants.
   Mauck, P. J.

The executor of the last will and testament of Aaron Spangler, deceased, filed his petition in the common pleas, pleading a copy of the will of the» testator and his doubt as to his powers and duties under the will to make a sale of the real estate described in the second item thereof, and praying for the judgment and direction of the court, and for an order directing him to sell the real estate mentioned. The case comes into this court on appeal. An examination of the will in question is necessary to determine the authority of the executor in the premises.

By the second item of the will, a life estate is devised to Sophia Spangler, the widow of the testator. The fifth item of the will reads as follows:

“After the death of my wife, Sophia Spangler the above mentioned real estate and household goods to be sold by my executor hereinafter named and the proceeds to be divided in 5 equal shares or parts, 1/5 to be given to my son Jerry Spangler, 1/5 to be given to my son William Spangler, 1/5 to be given to my daughter Mrs. Maud Thomas, wife of Ben Thomas; 1/5 to be given to my grandson Russell Ray Spangler, son of my son Elias Spangler, now deceased, and 1/5 to be given to the heirs of my daughter, Mrs. Minnie Alden-' derfer, now deceased.”

The will was duly probated, and the widow accepted thereunder. Since her acceptance of the provisions of the will, she has made a conveyance of her life estate to the parties mentioned in the item quoted above.

It is claimed by the petitioner that this item gives a vested estate in remainder to the devisees mentioned, and that, having a vested remainder by will, and the precedent life estate by virtue of the deed of the widow, no reason exists why the power to sell should not now be exercised by the executor.

We do not consider it necessary to determine whether the item quoted creates a vested or a contingent estate in remainder. The power of the executor does not proceed from the interests of the devisees, and is not affected by the character of such interests. It arises from the language of the testator conferring the power to sell. The power to sell conferred upon an executor can only be exercised in the manner and at the times prescribed in the will. 24 Corpus Juris, 170. The time prescribed in this will was after the death of the widow.

It is forcibly argued, however, that the remainder has been accelerated by the acquisition of the life estate of the remainderman, and that, the remainder having been so accelerated, the power of the executor to sell has been similarly accelerated, and in this connection there has been invoked the doctrine of acceleration of remainders, as laid down by the Supreme Court of this state in Holdren v. Holdren, 78 Ohio St., 276, 85 N. E., 537, 18 L. R. A., (N. S.), 272, as follows:

“Under the doctrine of acceleration of remainders, a devise to A for life, and at his death to B, is to be read as a limitation of a remainder, to take effect in every event which removes the prior estate out of the way; but this doctrine rests upon the presumed intention of the testator, and will be applied only when promotive of his intention.”

It will be observed that the Supreme Court says that acceleration may ensue “in every event which removes the prior estate out of the way.” The court does not undertake to define what this curious expression means. The opinion, however, shows that it rests largely upon Jarman on Wills, by Bigelow (6th Ed.), vol. 1, p. 568, and the cases cited by Jarman, and that the peculiar expression quoted is one originated by that author.

While our court has not attempted to explain what it and Jarman meant by “every event which removes the prior estate out of the way,” the Supreme Court of Illinois, likewise undertaking to apply the doctrine of acceleration as laid down by Jarman has given that expression definite application. In Slocum v. Hagaman, 176 Ill., 533, 52 N. E., 332, that court first recognized and undertook to follow the rule mentioned. Later, in Cummings v. Hamilton, 220 Ill., 480, 77 N. E., 264, the same court had under consideration a will in some respects similar to the one at bar, but rather more favorable to the claim of the plaintiff in error therein than is the will in the instant case. In the Illinois case, as in this, the life tenant conveyed his interest in the property devised him to the remainderman, and it was claimed that by virtue of this conveyance the remainder was accelerated and that partition ought to be had. The Supreme Court of Illinois, however, held, page 484 (77 N. E., 266):

“With this contention we are unable to agree. The conveyance of the life estate does not amount to its removal ‘out of the way.’ It is not removed unless it is in some manner destroyed, as by renunciation or refusal to take, or by its being defeated by some event which takes away the right of the life tenant to hold the property prior to his decease, where the instrument creating the life tenancy has provided that such event should terminate that tenancy, or where the life tenant has failed in the performance of duties upon the performance of which the life tenancy depends. The conveyance of the life estate to another does not amount to a destruction or removal thereof.” (Italics ours.)

In view of the . fact, therefore, that the Holdren case in Ohio and the Illinois cases mentioned have both adopted from Jarman the unusual expression that acceleration follows when the precedent estate has been removed out of the way, and the Illinois court has held that the conveyance of the life estate is not such removal, we are impelled to the view that the Holdren case, properly construed, will not permit an acceleration of the remainder, attempted to be accomplished by a voluntary conveyance by the life tenant to the remainderman.

It follows, therefore, that for this reason there has been no acceleration of the remainder, and consequently that there could be no acceleration of the power to sell.

In Holdren v. Holdren, supra, it is held that whatever may be the general rule for the acceleration of a remainder the doctrine nevertheless rests upon the presumed intention of the testator and will be applied only when promotive of his intention, and never for the purpose of frustrating his desires. The way in which the question has most usually arisen has been upon the renunciation by the widow of the provision made for her by the will and her election to take under the law instead. A situation of that kind makes necessary the application of some equitable method for adjusting the interests of the beneficiaries, and out of such necessity grew the doctrine of acceleration. Our research has not disclosed any case where this doctrine has been applied by reason of a contract made by the parties whereby the beneficiaries under a will accomplish something that was clearly not desired by the testator. The item of the will above quoted shows that the testator’s purpose was that the lands mentioned therein should not be sold until after the death of his widow.

By the seventh item of the will the testator further provided that other property owned by him should be sold by the executor during the life of the widow, but that the proceeds could not be fully distributed; the executor being required to retain sufficient of the proceeds to pay the taxes and upkeep of this property which the widow was to occupy during her life. To permit a sale of the lands would therefore invoke not only a violation of the fifth item of the will, but would render futile the provisions made for the benefit of the widow by the seventh item of the will. It is thus apparent that to grant the prayer of the petition in this case would be making an order not promotive of the intentions of the testator, but in frustration thereof. We cannot so construe the will as to accomplish this result.

The prayer of the petition is consequently denied and the petition is dismissed.

Petition dismissed.

Sayre and Middleton, JJ., concur.  