
    Patton v. Patton.
    1. The proviso in section 1, of the act of March 30, 1874, amending the Wills’ act, 1852, which declares that a bequest to any benevolent, religious, educational or charitable purpose, shall be invalid and void if the testator dies within twelve calendar months from the execution of the will, leaving issue of his or her body living, or their legal representatives, is a constitutional and valid enactment.
    2. Such void bequest never takes effect, and if no other disposition be made of the property in the will, it descends to the heir immediately upon the death of the testator.
    3. Such bequest is not saved from the condemnation of the statute by making it contingent upon the extinction, of the lineal descendants of the testator. In case of such extinction, collateral heirs may assort the invalidity of the bequest.
    4. Where a testator gives direction to his executor to sell real estate for the purpose of paying a void bequest, and no disposition over is made of the property by the will, it descends to the heir as land, and is not subject to the power of sale. ' '
    Appeal. Reserved in the District Court of Highland County
    Joseph D. Patton executed his will on the 29th of January, 1878, and died on the 24th of March following, seized of a large estate, both real and personal, leaving surviving him,Betsy Ann Patton, his widow, Joseph Frank Patton, his grandson, and only surviving lineal descendant, and James II. Patton, and others, his brothers and sisters. Betsy Ann, the widow, died in July, 1880, and Joseph Frank, the grandson, died intestate in March, 1881, childless, and without brothers or sisters, and his father and mother being then dead, left Augusta A. Curtis and Jennie Hill, sisters of his mother, his next of kin.
    The following is a copy of Joseph D. Patton’s will:
    “I, Joseph D. Patton, of the county of Highland, and state of Ohio, do make and publish this my last will and testament:
    “ 1st. I devise that all my debts and funeral expenses be paid out of any money on hand or owing me, at the time of my death, or if there be no money on hand or owing me, then out of the proceeds of the sale of as much of the personal property belonging to me at the time aforesaid, as may be necessary for such purpose.
    2d. All the remainder of my personal estate, including moneys, rights in action, household goods and goods of every kind, and all chattels, I give and bequeath to my wife, Betsy Ann Patton, during her natural life, and at her death, to my grandson, Joseph Prank Patton.
    “ 3d. I give and devise to my wife, Betsy Ann Patton, all my real estate during her natural life, and at her death I give and devise the same to my grandson, Joseph Prank Patton.
    “4th. After the death of my wife, and during the minority of my said grandson, I give to my executor, hereinafter named, or to his successor in office, the possession and control of my said real estate, and direct that he apply the income from said real estate to the proper support, maintainance and education of my said-grandson, or so much thereof as may be necessary for such purpose, and that the residue (if any) be safely invested for his benefit by said executor, or the lawful guardian of said grandson.
    “ 5th. If my said grandson, Joseph Prank Patton, die leaving no child or children, then I direct my said executor, or his successor, to sell all my real estate in such manner and upon such terms as he shall deem best, and to execute proper conveyance therefor, and the proceeds of such sale, also moneys and other property devised by me to my said grandson, after payment of costs and expense of administration, I direct to be paid, share and share alike, to the Board of Home Missions of the Presbyterian Church in the United States of America, whoso office is now in New York city, and to the Board of Foreign Missions of the Presbyterian Church in the United States of America, whose office is now in New York city, to aid in carrying on the work of Foreign and Domestic Missions. But if my said grandson die leaving a child or children, then I give and bequeath to said child or children all moneys and property hereinbefore mentioned and devised, such child or children to take said real estate in fee simple.
    “ 6th. I nominate Richard C. Barrett as executor of this my last will and testament, and I authorize him to sell at pub-lie or private sale so much of my personal property as may be necessary to pay debts and funeral expenses.”
    This is a civil action brought by James II. Patton, a brother of the testator, Joseph D. Patton, for the partition of the real estate of which the testator died seized, among his brothers and sisters and their legal representatives, all of whom are parties, and who are alleged tobotheowners thereof in fee simple.
    All persons claiming an interest in the real estate are also made defendants.
    The Boards of Home and Foreign Missions deny the title of the brothers and sisters of the testator, and claim the entire beneficial interest in the lands under the fifth item of the will.
    Augusta A. Curtis'and Jennie Hill claim the estate as the heirs and next of kin of Joseph Frank Patton.
    The executor of Joseph D. Patton, the testator, claims the right to sell the estate under the fifth item in the will, and to pay the proceeds to whomsoever entitled.
    
      Hart and Hough, for plaintiff:
    We claim: 1. That the bequest to the Boards of Home and Foreign Missions falls directly under the act of March 30, 1874.'
    2. That there is no room for construction, because there is no doubt or ambiguity in the language of the statute which calls for or needs construction. It is not a remedial statute. It does not conflict with any common law right. It is not a statute in derogation of the common law, and there is no mischief which it was passed to correct. Sedgwick on Stat. and Const. Con. (2d ed.) 194; Bosely v. Mattingly, 14 B. Mon. 89; Fisher v. Blight, 2 Cranch, 258-9 ; Wharton’s Dig. 569; Case v. Wildridge, 4 Ind. 51-3; 4 Ohio St. 385; Gardner v. Collins, 2 Pet. 93; Brower v. Hunt, 18 Ohio St. 341; Priestman v. U. S., 4 Dallas, 28-30; Woodherry v. Berry, 18 Ohio St. 456; Wilcox v. Nolze, 34 Ohio St. 523; Broom’s Legal Maxims, 132. These bequests come under the act for the testator'died in less than two months after making liis will, lie left living a legal representative of his, son in the person of his grandson, Joseuh Frank Patton.
    
      As'to the-constitutional objection to this act, we have simply to say that the right to make a will is a legislative on¿; Blackstofie’s Com: 12.
    To whom does this property belong ?
    1st. "We claim confidently that this estate, both real and ■ personal, is now property undisposed of by the will of Josepli' Dl Patton.
    2d. That it became intestate property at the time of the death of Joseph Frank Patton without children, and not. before.
    If these propositions be true, no doubt can arise as to the ownership of the property, as the brothers and sisters of the testator take it as his only heirs at law.
    Let us see if it be true. ’ The testator by his will creates a life estate in his widow in both his real and personal property. That a life estate can be created in personal property,is now, in view of the law, no longer doubted, and the doctrine is clearly sustained in the following cases : Gillespie v. Miller, 5 Johns. Ch. 21; Washb. Real Prop. 725; King v. Beck, 15 Ohio, 559; Pruden v. Pruden, 14 Ohio St. 251; Hustead v. Craighead, 23 Ohio St. 198. After the death of his widow he creates a life estate in his grandson, Joseph Frank Patton, in both the real and personal property.
    The death of Frank Patton without child or children, is a contingency unprovided for in the will. It is true it was provided for, but the provision being void, it is the same in law as being unprovided for, and then, at that time, this property becomes intestate property, and descends to the heirs at law of the testator, for it car.’ t lie claimed that this property was intestate property at any time during the life of Joseph Frank Patton. King v. Beck, 15 Ohio, 559; Bunnell v. Evans, 26 Ohio St. 309; Bates v. Zinsmeister, 29 Ohio St. 465.
    As to the powér to sell the real estate, see Lessees of Ward v. Barrows, 2 Ohio, 252 ; 1 Williams on Ex’rs. 586, 588; Holt v. Lamb, 17 Ohio St. 374.
    
      James II. Thompson and C. U. Collins, for the Boards of Missions.
    
      
      S. F. Steel for R. C. Barrett, the executor of Joseph D. Patton:
    The language of the will is imperative: “I direct my said executor o.r his successor to sell all my real estate,” etc. The only discretion given, is as to the manner and terms of sale. The clear purpose is to convert the real estate into money, and to blend it with the other personal estate for further administration, and after the payment of costs and expenses of such administration, to distribute it as directed. Even if the bequests be void, the clear intention of the testator that his whole estate should be treated as personalty for purposes of distribution, remains unchanged. Courts of equity give to the estate that quality which the executor has impressed upon it. Collier v. Collier, 3 Ohio St. 369; Ferguson v. Stuart, 14 Ohio, 140; Collier v. Grimesey, 36 Ohio St. 17; Phelps v. Pond, 23 N. Y. 69; Gedges v. Western Bap. Theol. Inst., 13 B. Mon. 530; Rumsey v. Durham, 5 Ind. 71; Stagg v. Jackson, 1 N. Y. 206-12.
    An absolute direction to sell, effects a con\rersion, though the intended beneficiary (a charity) be incompetent to take ; the Avill having been executed Avithin one month of testator’s death. Evans’ Appeal, 63 Penn. St. 183. All the provisions of the Avill taken together sIioav that the testator intended the whole estate to be distributed as personalty, if Prank should die leaving no child or children. The limitation upon the interest of his widow, and upon the estate of Frank, and the imperative direction to sell the real estate and commingle the proceeds with the personalty for administration, if Frank should die childless, furnish the evidence of this intention.
    Ha/rrison, Olds de Marsh and Sloane & Newby, for Augusta A. Curtis, Jennie Hill and the administrator of Joseph F. Patton:
    The personal property passed to the administrator of Joseph F. Patton to be distributed to his next of kin. Gilpin and wife v. Williams, 25 Ohio St. 283; White v. Howard, 46 N. Y. 144; Lessee of Thompson v. Hoop, 6 Ohio St. 481; Crain v. Doty, 1 Ohio St. 279; Pence v. Pence, 11 Ohio St. 290; Piatt v. Sinton, 37 Ohio St. 353; and the other authorities heretofore referred to.
    As to the real estate of the testator, we contend that it was stamped with the character of personalty 't>3T the absolute direction to the executor to sell and convert, and transmute into money, and that the right to the proceeds of its sale passed as personal property to the administrator of Joseph Frank Patton to be distributed to his next of kin. Nothing is better settled in this State than that land directed by a will to be sold and converted into money is treated as personal estate, and governed by the statute of distribution. Ferguson v. Stuart's Executors, 14 Ohio, 140; Collier v. Collier's Executors, 3 Ohio St. 369, 374; Richey v. Johnson, 30 Ohio St. 288; Collier v. Grimesey, 38 Ohio St. 176.
   McIlvaine, J.

As to the claim of the Home and Foreign Missions : It was, beyond doubt, the intention of the testator, that in case of the death of his widow and the death of his grandson, leaving no child or children, the real estate in dis-. pute should Ire sold by his executor, and the proceeds equally divided between the Missions. Rut, the testator dying within a year from the execution of the will, the contingent bequest to the Missions fell within the condemnatory terms of the proviso in section 1 of the "Wills Act of March. 30th, 1874, amending the act of 1852. The Section reads as follows :

“Section 1. That any person of full age and sound memory, having an interest in lands, tenements, or hereditaments, or any annuity or rent charged upon or issuing out of the same, or any goods, chattels, rights, credits, choses in action or possession, or any other property of any description whatever, may give and devise the same to any person, by last will and testament, lawfully executed; subject, nevertheless, to the rights of creditors, and to the provisions of this act, and of an act entitled An act to restrain the entailment of real estateProvided, that if such testator or testatrix shall die, leaving issue of his or her body living, or their legal representatives, or shall leave an adopted child or children living or their legal representatives, and said will give, devise, or bequeath such estate, in whole or in part, to any benevolent, religious, educational or charitable purpose, or to any person in trust for any of such purposes, whether such trust appears upon the face of the instrument making such gift, devise, or bequest or not, to the state of Ohio, or any state or country, to any county, township, city, incorporated village, or other corporation or association, in this or any other State or country, in such case said last will, as to such gift, devise, or bequest, shall be invalid and void, unless such will (or if contained in a codicil thereto, then such codicil) shall have been duly executed according to law at least twelve calendar months prior to the decease of such testator or testatrix.”

In behalf of the Missionary Boards it is contended that this proviso does not apply to a bequest contingent upon the extinction of lineal descendants. This contention is based on the assumption that lineal heirs alone may object to such beqnest, as thq proviso was for their protection alone. But this assumption is not authorized by the statute. We can see no reason why any one interested in the descent and distribution of the estate may not assert the invalidity of the bequest. True, the invalidity of the bequest depends on the existence of lineal descendants, natural or adopted, at the death of the testator; but no use of the void bequest is preserved to lineal descendants. It remains in the general estate, and if not otherwise disposed of in the will, becomes intestate property.. The true character of such bequest, whether void or valid, is determined by the state of facts existing at the testator’s death, and not by any subsequent contingency.

A labored argument has also been submitted by counsel for the Missionáry Board to show that the proviso in ques-: tion is unconstitutional and void. The postulate of this argument seems to be that the right of the citizen to dispose of his property by will is a constitutional right which the legislature cannot destroy or abridge. Is this proposition true % Testamentary power is not referred to in terms, either in. ■ the constitution of the state or of the United States. It is contended that it is recognized by implication in section 1 of the Bill of Rights in the State Constitution, which reads :

Section 1. All men are by nature free and independent, and have certain inalienable rights, among which are those, of enjoying and defending life and. liberty, acquiring, possessing and protecting property, and seeking and obtaining happiness and safety,”

We concede that the right to acquire property implies the right to dispose of it. But the inalienable rights here declared, as well as those implied, are possessed by living, not by dead men. A disposition by will does not take effect during the testator’s life, but operates only after his-death.

While the right of testamentary disposition may be, as Mr. Bedfield, in his work on wills, says, instinctive, it nevertheless depends solely on municipal law, and has never been regarded asa natural or inalienable right. It has always been subject to the control of legislative power, and such power is' not limited in this State by constitutional provision. Hence, it follows that the contingent bequests to the Home and Foreign Missions, contained in the will of Joseph D. Patton, who died within a year after the will was made, leaving the legal representative of a son surviving him, became absolutely void immediately at and after the death of the testator.

What, then, became of the title to the property in controversy, upon the death of the testator ?

Under the will, an estate for the life of the widow vested in her, and an estate in remainder, after the death of the widow, vested in the grandson, Joseph Frank, for his life. Kemainder over, in fee, to the child or children of Joseph Frank, if he should die leaving a child or children. There was no such child or children” in being. And no further disposition was made of the property by the will. True, the terms of the devise to Joseph Frank were ample to pass, subject to the life estate of the widow, a fee simple remainder, but construed in connection with other parts of the will, it is quite clear that the testator intended the estate devised to the grandson to be for his life only.

. It seems clear, therefore, that upon the death of the testator the whole estate, subject to the life estates of the widow and the grandson, vested by descent in the heir of the testator, subject to be divested in favor of the child or children of Joseph Frank Patton, if he should die leaving any.

Joseph Frank Patton, therefor, sole heir of the testator, never having had a child or children, died seized of this estate in fee simple, and intestate.

The next question in the case is raised by the executor of Joseph D. Patton’s will, who claims the right under the will to sell the estate and administer upon the proceeds. Augusta A. Curtis and Jennie Hill, sisters of the mother of Joseph Frank Patton, as next of kin to the deceased Joseph Frank, claim that by the direction to sell contained in the will, the estate is to be regarded as converted into money, and passes to the next of kin as personalty. These claims may be disposed of together. The controlling question is: Did the testator intend that upon the death of Joseph Frank, without leaving a child or children, this property should be converted into money, although the bequests to the Mission Boards should be invalid and void ? It is not at all probable that the testator contemplated such contingency; but, on the other hand, we are satisfied that the sole reason of the testator in directing the sale of the land was for the purpose of dividing the proceeds, as money, between the two Boards of Mission. ■ If this be so, tl;e power of sale fell with the bequests. The direction in the Avill is, that “ If my said grandson, Joseph Frank Patton, die leaAnng no child or children, then I direct my said Executor or his successor, to sell all my real estate .... and the proceeds of such sale .... I direct to be paid share and share alike to the Board of Home Missions . . . and to the Board of Foreign Missions.” True, the contingency happened upon Avhich the testator intended the poAver to sell should accrue, and upon the happening of the same contingency the direction to pay the proceeds share and share alike to Mission Boards was to become absolute, according to the intention of the testator. But, by his death within a year from the making of the will, the directing as to the payment of the proceeds become inoperative and void, therefore the direction to sell also become inoperative and void.

The law on this point is well stated in 1 Williams on Executors, 588, as follows:

“ The principle seems to be, that where the purpose of the testator still requires a sale of the whole land, and there is only a partial disposition of the produce, the surplus belongs to the heir, as money and not land, and will go to his personal representative. But where no purpose of the divisor demands, in the events that have happened, that the whole land shall be converted into money, then the heir shall take the resulting property as land, and it shall descend as such to his heir. Thus, where a divisor directs his land to be sold and the produce divided between A. and 13., the obvious purppse of the testator is, that there shall be a sale for the convenience of division ; and if A. dies in the lifetime of the divisor, and the heir stands in his place, the purpose of the testator still applies to the case. Therefore the heir will take the share of A. as money and not as land. But if A. and B. both die in the lifetime of the testator, and the whole interest in the land descends to the heir, the purpose of the testator, that there shall be a sale for the convenience of division, has no application, and the heir will take the whole interest as land.”

This brings us to the conclusion that the real estate of which the intestate, Joseph Frank Patton, died seized, the same being ancestral property, passed, at his death, to the brothers and sisters, and their representatives, of Joseph T). Patton, from whom the estate came, in accordance with the provisions of sections 415Revised Statutes, prescribing the course of descent of ancestral property.

And that the personal estate of which the intestate died possessed, be distributed to Augusta A. Curtis and Jennie Hill, sisters of intestate’s mother, and next of kin to said intestate, in accordance with the provisions of section 4163 of Revised Statutes. Decree accordingly, and cause remanded to the court of common pleas for partition, in accordance with the prayer of the petition.

Judgment accordingly.  