
    Peter Shillinglaw et al., Appellants, v. P. O. Peterson et al., Appellees.
    WILLS: Rights of Devisees — Partition by Remaindermen Prior to 1 Execution of Trust. Remaindermen who, under a will, are entitled to possession of real property only after the execution of a clearly defined trust, may not have partition of the property, or any part thereof, prior to the full execution of said trust, on the plea that the testator set aside more property than was necessary for the purposes of said trust, and that the court should revise the amount and immediately divide the balance among said remaindermen. So held where testator devised all his property, which was quite extensive, in trust for the life support of two nephews.
    TRUSTS: Management of Trust — Death of Trustee — Effect. The 2, 6 death of a trustee prior to the execution of the trust does not terminate the trust, when no special trust or confidence was reposed by the truster in the deceased trustee.
    PARTITION: Actions for Partition — Right to Possession as Affect-3 ing Right. He only may maintain partition who is entitled to the immediate possession of his or her share of the property. So held where' there was an attempt to partition prior to the full execution of a preceding trust.
    CONVERSION: Equitable Conversion — Wills. A will which de4 vises real estate to a trustee, and directs the trustee to execute a named trust and then .to sell the property and to divide the proceeds among certain remaindermen, works an equitable conversion of the realty into personalty, thereby depriving the remainderman of any legal or equitable interest in the land itself, and, needless to say, of the right to partition the land.
    PARTITION: Proceedings and Relief — Incumbrances. A definite 5 devise of all of testator’s property to a trustee, with equally definite direction to the trustee to use the income for the life support of two named beneficiaries and then to sell the property and divide it among certain named persons, creates something more than an “incumbrance,” within the meaning of Sec, 4249, Code, 1897, which provides that, if any question of “incumbrances” arises in an action for partition, the court may direct issue to be made for the settlement of the same.
    TRUSTS: Management of Trust — Death of Trustee — Effect. 2,6
    
      Appeal from Hamilton District Court. — H. E. Fry and E. M. McCall, Judges.
    May 20, 1918.
    Rehearing Denied September 20, 1918.
    
      Action in partition. Opinion states the facts. Decree dismissing- plaintiffs’ petition. Plaintiffs appeal.
    
    Affirmed.
    
    
      Wesley Martin, for appellants.
    O. J. Henderson, for appellees.
   Gaynor, J.

Thisi action is brought by certain heirs of one Andrew Shillinglaw, against certain other heirs and certain devisees named in the will of Andrew Shillinglaw, for the partition of certain real estate owned by Andrew Shillinglaw at the time of his death. The prayer of the petition is that judgment be entered confirming the shares of the parties plaintiff and defendant in the real estate, and that the land be partitioned among them. The alternative prater is that, if the land cannot be equitably divided, it be sold, and the proceeds divided among them according to their respective shares. The petition, in substance, alleges that Andrew Shillinglaw died on the 3rd day of July, 1907, leaving a will in the words following:

“I, Andrew Shillinglaw, of the township of Lyon in the county of Hamilton and state of Iowa, of the age of 59 years and being of sound mind, do make, publish and declare this my last will and testament, in manner following, that is to say: 1 give, devise, and bequeath all my property, both real and personal, after my just debts and funeral expenses shall have been paid, in trust, to M. H. Brinton, of Ellsworth, Hamilton County, Iowa, to be held and managed by the said M. H. Brinton for the support and keeping of Joseph Shillinglaw and William Shillinglaw, my nephews, during their lifetime. After the death of both the above named, Joseph Shillinglaw and William Shillinglaw, I direct said trustee, M. H. Brinton, to sell and convey all my property and- distribute the proceeds as follows: 'First to Jennie Shillinglaw-Clauson, my niece, the sum of $500 over and above her share as a legal heir. The balance is to be divided among my legal heirs, except Allen Shillinglaw, a nephew, who, after having paid for his labor, is to have only $100.”

This will was duly admitted to probate on the 18th day of December, 1908.

In June, 1912, M. D. Brinton, named as trustee in said will, died, without having made any disposition of the real estate mentioned in the will. After the death of Brinton, the defendant P. O. Peterson was appointed by the district court of Hamilton County as trustee of said will, and has taken no steps to convert the real estate.

Andrew Shillinglaw, -at the time of his death, was a bachelor, and left no children or descendants of children surviving him. His father and ipother died long prior to his death. The plaintiffs and defendants aforesaid included all the heirs of said Andrew Shillinglaw and all persons having any right, title, or interest in the property. Joseph Shillinglaw and William Shillinglaw, named in the will, are made defendants because of their interest under the will, and P. O. Peterson, because of his relationship to the estate as trustee.

It is alleged and claimed that the interests of Joseph Shillinglaw and William Shillinglaw can be protected by setting off a certain portion of the purchase price of the real estate, sufficient to maintain them as the will provides.

P. O. Peterson, trustee, and Joseph and William Shillinglaw, mentioned in the will, appeared and filed demurrer to llie plaintiffs' petition, basing the demurrer on the grounds:

1. That the facts stated do not entitle the plaintiffs to the relief demanded.

2. That plaintiffs are not entitled to relief, until the termination of the life estate vested in Joseph and William.

3. That plaintiffs are not entitled to the possession of the property described in the petition until after the death of Joseph and William, and are, therefore, not entitled to the partition during the life of Joseph and William.

4. That the plaintiffs are not the owners of any share or shares in the real estate, but are only entitled to a division of the proceeds upon sale made, after the death of Joseph and William.

5. That Peterson, as substituted trustee, has the right of control of said property during the lifetime of Joseph and William, and also the right to sell the property after 'their death, and this right and duty in the premises cannot be defeated by an action of partition.

6. That to partition would defeat the manifest purpose and intent of the testator.

This demurrer was sustained. Thereupon, plaintiffs filed an amendment to their petition, in which they alleged that a very small portion of the income from the land in question is needed for the support and keeping of Joseph and William; that the land involved consists of 320 acres, and is worth $200 an acre, unencumbered; that one fourth of the purchase price of said land, if sold, would be sufficient for the support and keeping of Joseph and William; that the trustee, Peterson, has in his hands a lai’ge accumulation from the income of the lands, for which there is no presexxt necessity, in so far as the keeping of Joseph and William is concerned; that Peterson, the trustee, is badly managing the estate; that Joseph and William are able-bodied, and capable of earning a large part of their support; that a good poxdion of the accumulated income from said land that went into the hands of Brinton during his administration has not been accounted for, and Peterson lias not required an accounting or the payment of the same to him as trustee; that waste is being committed by Peterson; that, with the exception of Peterson and Joseph and William, all plaintiffs and defendants herein are the heirs at law of Andrew Shillinglaw, and are ready, willing, and anxious to sell the lands, and have the court set áside such portion of the purchase price as will yield an income sufficient for the support and keeping of Joseph and William during their lives.

To the petition, as amended, a demurrer, substantially the same as that interposed to the original petition, was submitted and sustained. Plaintiffs appeal.

The situation presents itself thus: The parties plaintiff and defendant in this action are the sole heirs at law of the testator, Andrew. Assuming that the heirs, plaintiffs and defendants, are agreed upon this action, and are seeking this partition, the situation would be no different than it would be were all the heirs at law of Andrew plaintiffs in the suit, and were seeking the relief prayed for herein. The object and purpose of the proceeding is to partition among these heirs the property mentioned in the will of Andrew, and bequeathed by him in express terms to a trustee, in trust, to be held and managed for the support and keeping of Joseph and William during their lifetime. One theory of the plaintiffs’, as evidenced by their amendment, is that the testator, in making disposition of his property, placed more property in the hands of the trustee than, in the judgment of these heirs, is sufficient for the support and keeping of Joseph and William during their lives. An appeal is made to what is denominated the “conscience of the chancellor,” and the thought seems to be that the court ought to interfere in behalf of these heirs because it is inequitable, as against them, to allow the trustee to hold, for the sole benefit of Joseph and William, property in excess of wlia.t tlieii* needs may be during their lives; that the court of equity ought to intervene and say:

“The will gives all the property of the testator to a' trustee, to be held and managed for the support and keeping of Joseph and William during their lives; yet the extent of the property is such that, in the judgment of the chancellor, the devise ought not to be carried out as made; that a portion of the property devised to the trustee for the keeping and support of Joseph and William ought to be taken away and divided among these heirs, leaving in the hands of the trustee only so much of the proceeds of the property devised as, in the judgment of the • chancellor, would be sufficient to support and keep William and Joseph during their lives.”

This is the theory of the amendment.

We dispose of this, first, before going to the legal right of these plaintiffs to partition, independent of any equitable considerations, such as are indicated above. Without elaboration, Ave have to say that a statement of this proposition is its best ansAAer. The property belonged to Andrew at the time this will was made, and at the time of his death. He had a right to make such disposition of it as he saw fit. Whatever rights the parties acquired under the will must be measured by the will itself.' It is not for the court to set up its judgment against the judgment of the testator in the matter of equities, if any equities there are to be considered. The testator said :

“T giA'e, -devise, and bequeath all my property, both real and personal, in trust to be hold and managed by my trustee for the support and keeping of Joseph and William during their lifetime.”

He left no discretion in the trustee, but gavm specific* and definite directions as to Avhat the trustee should do upon the death of Joseph and William. He directed the trustee to sell and convey the property and to distribute the proceeds, directed just how it should be distributed, giving to .some heirs more than an heir’s aliquot part and to other heirs less; but gave specific direction as to how this division should he made. When the trustee named in the will died, and. -a new trustee was appointed to carry out the provisions of the will, he became vested with all the power possessed by the trustee named, because in the will there was no special trust or confidence imposed in the person named as trustee, touching the disjjosition of the property. The new trustee acts under the will, and his powers and their limitations are found in the will, and, for all intents and purposes, he is charged with the duty of executing the provisions of the will as written. Tf the trustee is not doing this, the remedy is not found in partition, but by an action to remove him, commenced by someone Avho is interested in the estate. There is no ambiguity in this will; no uncertainty as to what disposition the testator desired to make of his entire property. There was a trustee named; cestui que trusts provided for; a clear direction as to what disposition should he made of the property upon the expiration of the trust.

We are cited to Filkins v. Severn, 127 Iowa 738, as sustaining the contention of plaintiffs that the property involved in this suit ought to be partitioned and divided among the heirs, leaving only sufficient in the hands of the trustee as may he found by the chancellor necessary to carry out the purposes of the trust. In that case, the court said:

“We are absolutely without any indication as to the intention of the testator with reference to the distribution of the trust estate. Even where a beneficiary is named, if the trust estate far exceeds in value the amount necessary to carry out the provisions of the trust, and there is no direction as to distribution on expiration of the trust, it is held that the heirsi are entitled to an immediate distribution of all property disposed of in trust beyond the amount necessary to provide for the purposes specified. Sears v. Hardy, 120 Mass. 524.”

In the Massachusetts case, the heir was the sole beneficiary in the trust. It was held that this property far exceeded in value the purposes for which the trust was created ; that enough should be set aside to preserve the trust and its beneficial purposes; and that the balance should go to the beneficiary, — he being also heir, — relieved of the trust character. In Filkins v. Severn, supra, it was held that the attempt to create a trust was void for uncertainty.

In the Sears case, after making certain bequests, the will devised all the residue to the trustees, with directions to pay to the son $30,000 when he arrived at the age of 21 (this was paid) ; to use all the income from the trust estate necessary for the support and education of the son; to. pay him $4,000 annually upon his reaching the age of 21, $6,000 per year after he .arrived at the age of 25, and $10,000 per year after he reached 30. It was apparent, therefore, that no disposition was made of the remainder of the trust estate, if any remained after the payment of these sums. At the time this suit was brought, all that was needed to carry out the trust was a sum sufficient to yield $10,000 a year. So the court said, in effect:

“Preserve the trust. Preserve sufficient to yield $10,000 a year. That is all the trust requires. There is no provision made for the disposition of the balance. There is a large balance. The plaintiff is the heir. It may be turned over to him; otherwise, the trustees hold all the residue for the sole purpose to pay to the son an annuity which cannot exceed $10,000. The will makes no disposition of the rest.”

Thus it appears that this case was decided under the rule, which is well settled, that, if the will fails to dispose of all the testator’s property, real or personal, the whole of the undisposed-of property, whether legal or equitable, goes to the persons on whom the law, in the absence of any disposition by will, casts the property. The final holding of the court was that the plaintiff alone is beneficially interested in the residue then held by the trustees, and that the trustees, as such, should hold sufficient of the property to carry out the purposes of the trust. The balance of the property, not necessary to the carrying out of the will, was undisposed of, and the court held that the undisposed-of property should be turned over to the person legally entitled to the same, to wit, the plaintiff in that case.

This case does not lend support to plaintiffs’ contention, although it appears that it has laid the foundation fbr a very plausible argument in their favor. We think there is no basis in law for the contention that, because the property is large, and the income may be more than is necessary to support Joseph and' William, this court should terminate the trust practically, and invest these plaintiffs with the property which cannot, under the terms of the will, go to them until after the death of both Joseph and William.

Are the plaintiffs, as a matter of law, entitled to maintain partition under the facts of this case?

Under the terms of the will, the testator gave, devised, and bequeathed all his property, both real and personal, in trust, to be held and managed by M. HI. Brinton, trustee, for the maintenance of William and Joseph. This created a life estate in the property in favor of Joseph and William'. That estate coui¿ oniy terminate upon their death. No specific devise was made of the property to these heirs. They never became entitled to it or to its possession. They could make no conveyance that would invest their grantee with title to the property, as against a conveyance made by the trustee upon the death of William and Joseph. Hunter v. Citizens Sav. & T. Co., 157 Iowa 168. The result is the same, whether Ave apply the doctrine of equitable conversion or hold that the beneficiaries under the Avill took an equitable interest in the thing devised.

It is gat dent fiom this will that it was the purpose and intent of the testator to create a life estate in Joseph and William, to-be held and managed by a trustee; that, upon the death of these beneficiaries of the life estate, the trustee should sell the property and dhdde the proceeds among the heirs of the testator. Assume the most favorable attitude for these plaintiffs in this case, and say that they became vested with either a legal or equitable interest in the estate, subject only to the life estate, it follows that the rights they acquired must be in subordination to the life estate created. They became, at best, remaindermen, and their right to maintain this suit must be measured and determined by that relationship. Tt is a general proposition that they only can maintain partition who are entitled to immediate possession by virtue of some OAAUiership in some part of the property sought to be partitioned. It Avas so held in Henderson v. Henderson, 136 Iowa 564, in Avhich it wa-s said:

“As a genera] rule, no one but a party entitled to the ](resent possession of his share in seAeralty may maintain an action for partition.”

As. bearing upon this question, see Elberts v. Elberts, 159 Iowa 332; Smith v. Runnels, 97 Iowa 55; Clark v. Richardson, 32 Iowa 399; Brown v. Brown, 67 W. Va. 251 (67 S. E. 596, 28 L. R. A. [N. S.] 125, and authorities cited).

Under no theory of- this case Avere these plaintiffs ewer entitled to the possession of this property. No specific devise of the pi'operty Avas ever made to them. The only right acquired by them, under the will is the right to share in the proceeds of the property on sale made by the trustee. Under the provisions of the will, no- sale could be made until after the death of Joseph and William. No right to the possession or to the proceeds came to these plaintiffs until the happening of thal event. Even if we should assume that the plaintiffs became vested with either a legal or equitable title in the land, subject to the life estate, they are not entitled to maintain this action at this time. See authorities cited above.

We think, however, that the effect of this will was to work an equitable conversion of this property. In Beaver v. Ross, 140 Iowa 154, 158, it was held that, where there is a postponement of the sale to a time subsequent to testator’s death, the devisee takes a vested interest, subject to the life estate and the executor’s power of sale, and a conversion takes place at the instant of the testator’s death, and all property rights are then determined as if the conversion had taken place at that time, and the rights of the parties are the same as if the property were personalty. In other words, the interest passes as personalty, and the legatees have no estate in the land as such. But even if there were no conversion, and an estate vested subject to the life estate and the power of the trustee to sell, no right to possession came to them, and'no sale could be made by them which co\ild not be defeated by a sale under the power vested tin the trustee. It follows, then, that, under either theory, these plaintiffs became invested with no title in or to the lauds sought to be partitioned that can be the subject of partition. This, whether we treat the provision of the will as working a conversion, or whether we treat it as passing some equitable or legal interest in the thing devised. There exists in them no right to the property or to its possession until, the time arrives for distribution under the terms of the will. Whatever rights these plaintiffs have in the property must be measured by the provisions of the will. The testator gave, devised, and bequeathed the lands to his trustee, to be held and managed for the benefit of Joseph and William during their lives. By no words did he invest these plaintiffs with title, immediate or otherwise, in the property then owned by him. There was a definite and distinct disposition of the property during the lives of Joseph and William, to be held and managed for their support and maintenance. Only upon the happening-of a contingency — the death of both Joseph and Williám — was any power vested in the trustee to sell the property, and only upon the exercise of that power, after the death of William and Joseph, did these plaintiffs become entitled to receive anything out of the estate of the testator. They have, and had then, therefore, no vested right to the possession and enjoyment of the property through any provision of the will, until the happening of the contingency upon which such right alone could accrue. Until the termination of the trust by the death of these two beneficiaries, the will gives to these plaintiffs no right to even the proceeds of the property. A partition could not be had, in any event, until the expiration of the life estate, or a failure of the trust provisions of the will. While the cestui que trusts are alive, and the trustee in full and active possession of the trust property, no right to the possession or enjoyment of even the proceeds of the estate came to these plaintiffs under this will.

It is claimed, however, that the provisions of the will create only a lien upon the property covered by the will in favor of Joseph and- William, for their support and maintenance during their lives; that this creates only a xdght in theml to enjoy sufficient of the estate as will meet satisfactorily the re-on Section 4249 of the Code of 1897, which reads-: quirements of the trust. This claim is based

“If any question arises as to the * * * amount of an incumbrance, * * * the court may direct an issue to be made up between the incumbrancer and an owner, and an adjudication thereon shall be decisive of their respective rights; and, upon a sale, it miay order the money to be re-tamed or invested to await final action in relation to its disposition.”

There might be something in this contention if the will simply created a lien in favor of these parties for support and maintenance, and the amount was in dispute, and the title had rested in these plaintiffs under the terms of the will; but such is not the situation here, and we need not further consider this statute.

It is next contended that the power vested in Brinton, the trustee named in the will, terminated with his death, and that the trust expired with his death. The assumption seems to be that, the trust having expired, the estate created in Joseph and William expired also; that the whole estate passed directly to the heirs, independent of any provision of the will; that no power passed to Peterson, under his appointment as trustee, to make a sale of the property, and no power to carry out any provision of the will. This is only argumentative, however, from what is said by this court in Feaster v. Fagan, 135 Iowa 633, 635; but we find nothing in that case to support this contention.

It was the purpose and intent of the testator to create a trust. The will itself defined and limited the trust. It named Brinton as the one designated by him to carry out the trust. There is nothing in the will to indicate that special trust or confidence was imposed by the testator in Brinton. The duties of the trustee were fully defined. On Brinton’s death, the trust remained. The power lay in the court to preserve the trust; to see that the purposes of the testator were carried out. To this end, Peterson was appointed to execute the trust, in accordance with the terms of the will. No discretionary power vested in Brinton. No discretionary power passed to Peterson. On Peterson’s appointment, Ms duties were defined and limited by the will itself; and we think, therefore, he became vested with all the power of a trustee in the management of the trust estate, limited and defined by the will itself that created the trust. As bearing upon this question, see Feaster v. Fagan, 135 Iowa 633, in which it was held that, where the power to sell was not left discretionary, — was not in the nature of a personal trust, — but its exercise was absolutely essential to the carrying out of the provisions of the will, — that power passed to one substituted in place of the one named in the will as trustee or executor. Boland v. Tiernay, 118 Iowa 59; Sherlock v. Thompson, 167 Iowa 1.

There is nothing in Hosely v. Shillinglaw, 176 Iowa 106, that contravenes anything that Ave have said in this case.

On the whole record, we are satisfied with the action of the court in denying partition in this case, and its action is, therefore, — Affirmed.

Preston, C. J., Weaver and Stevens, JJ., concur.  