
    Flickinger v. Saum.
    1. A testator devised all his real and personal property as follows : “ I give and bequeath to my beloved wife Eleanor the balance of my real and personal estate to sell, rent or possess so long as she may remain unmarried and my widow — after my lawful debts shall be paid; but in case of my wife’s death or re-marriage, then the remainder thereof to be equally divided among the heirs of John C., James H., William B., Lydia Ann and Eliza Ann Thomas” (his five children), “ as they become of age — after the lawful debts of my wife’s contracting are paid. And I hereby nominate and appoint Jacques Speer to be my executor of this my last will and testament.” The devisees survived the testator. The grandchildren accepted the devise and survived the widow, who left the real estate and a part of the personalty and a debt which she had contracted for her support. Held: A vested interest in-remainder in such of the personalty as might be left, and a remainder in fee in the z-eal estate (after the determination of the life estate of the widow) was vested immediately in the grandchildren as tenants in common. By accepting the devise, however, -the z’emaindermen became personally liable for the debt of the widow, which was also a charge on the remainders.
    2. The executor paid all the debts of the testator and settled an account showing a small balance, which he was ordered to pay to the widow. Held: Presumably the executor had no remaining duty to perform. It was not his duty to pay the widow’s debt, nor to divide the estates in remainder.
    3. Accordingly, notwithstanding the creditor obtained a judgment against the executor, as such, for the amount of the widow’s debt; and the executor sold the real estate under an order of court in a suit brought by him professedly to carz-y out the will and pay said debt out of the proceeds of a sale and divide the residue among the devisees (of which suit tlie sureties on the executor’s bond had no knowledge), the sureties are not answerable for the executor’s refusal to pay over to the devisees the proceeds of sale conformably to the order of the court confirming the sale, and of the probate court on settlement of an account therein.
    Ebjroe, to the District Court of Butler County,
    The original action was brought in the common pleas of Butler county by Mary E. Saum against Jacques Speer, executor of John H. Thomas, and Flickinger and Sanders, his sureties on the executor’s bond. The bond is in the usual form.
    The breach assigned is the executor’s refusal to pay her distributive share as legatee of a balance found due from the executor on settlement of his final account in August, 1878, in the probate court, and which he was ordered to-distribute according to the will. The will was admitted to probate in Butler county on the 17th day of April, 1856, and reads as follows:
    “ To all to whom these Presents may come:
    
    “I, John H. Thomas, of Wayne Township, Butler county, Ohio, having reflected on the uncertainty of life and being of usual sound mind and memory (blessed be God for the same) do make and. publish this, my last will and testament:
    “ By reference to accounts and receipts for the same in my family account book it will be seen that I have given to my five children, John C., James H., William B., Lydia Ann and Eliza Ann, each §500, which amount I hereby consider their present legacy. I give and. bequeath to my beloved wife Eleanor the balance of my real and personal estate to sell, rent or possess so long as she may remain unmarried and my widow — after my lawful debts shall be paid; but in case of my wife’s death or re-marriage, then the remainder thereof to be equally divided among the heirs of John C., James H., William B., Lydia Ann and Eliza Ann Thomas,, as they become of age — after the lawful debts of my wife’s contracting are paid.
    
      “And I hereby nominate and appoint Jacques Speer to be my executor of this, my last will and testament.
    “John H. Thomas.
    • “March 29, 1856.”
    The testator died the owner of real and personal estate situate in Butler county. His widow and grandchildren survived him.
    On the 27th day of May, 1859, the first account of the executor was settled in the probate court. Abalance of $17.86 was found in his hands and ordered to be paid to the widow. All the debts of the testator and expenses of administration had been paid and were credited in this account.
    The widow remained in possession of the real estate until her death in 1875. After the settlement of the account, the widow became indebted to one Yeager on account of her support in about the sum of $800. The executor paid a.part of this indebtedness and judgment for the balance was recovered against him as executor. In May, 1875, after the death of the widow the executor brought suit in the common pleas of Butler county for the sale of the real estate for the alleged purpose of paying said indebtedness contracted by the widow and dividing the proceeds among the devisees — the 18 grandchildren of the testator of whom Mrs. Saum is one.
    The heirs at law and devisees of the testator were made parties. The sureties were not parties, and it does not appear that they had any notice of the proceedings.
    On the 16th day of February, 1876, the land was sold and the sale confirmed the same day. On the 8th day'of August, 1878, the last account of the executor was settled in the probate court and a balance found in- his hands of $4,751.05, which he was ordered to pay over according to law under the will. .
    To recover her share of this balance was the object of the original suit brought by Mrs. Saum as one of the eighteen devisees.
    
      Iii this last account the executor charged himself with proceeds of sale of real estate amounting to $5,072.12, and with the amount received from the widow’s estate amounting to $447.35. The ages of the grandchildren are not shown in the record. The principal defense by the sureties was that the first account was final, and that thereafter there remained nothing to be done by the executor under the will or statute.
    In the common pleas Saum recovered judgment. On error the district court affirmed the judgment. To reverse this judgment of affirmance the sureties have brought this proceeding.
    
      Thomas Millikin, for plaintiff in error.
    I insist that the duties of the executor ceased at his settlement in 1859, and that they did not revive at the widow’s death. The land was given to the grandchildren directly with an incumbrance on it of the widow’s lawful debts and her life estate; but it was so given without any trust being imposed. Hence the sale of the land by the executor was unauthorized, and the sureties on his bond are not liable for any misappropriation of proceeds of sale.
    There are but three instances where an executor is authorized to sell real estate.
    (1) Where he is authorized so to do by the terms of the will. 2 Rev. Stats., sec. 6167.
    
      (2) When a testator has given a legacy by will that is effectual to ‘charge the real estate, and there is not sufficient personal estate to pay it. 2 Rev. Stats., sec. 6172.
    (3) Where the personal estate is insufficient to pay the debts of the deceased, allowance to the widow and children and charges of administration. 2 Rev. Stats., sec. 6136; Id., sec. 6147.
    . This case falls under neither head. The testator’s debts ■were all paid: there were no legacies. He gave the specific real estate directly to his grandchildren subject to certain incumbrances. Besides, he fixes the period of division among them as thej' become of age. He nowhere intimates that the land is to be sold.
    
      Speer was not Eleanor Thomas’ executor, and was not bound to pay her debts contracted after John H. Thomas’ death. The land was given cum onere to Mary E. Saum and the other grandchildren. It was their business alone to pay the widow’s lawful debts. There is no direction in the will to Speer, executor of John II. Thomas, to pay such debts. Nimmons v. Westfall, 83 Ohio St., 213, 224.
    But the executor was not directed by the will to divide it. It was given directly to the grandchildren without any trust being imposed. They .could divide it themselves.
    The condition of the executor’s bond was as follows:
    “ Secondly — Shall administer according to law and the will of the testator, all his goods and chattels, rights and credits, and the proceeds of all his real estate that may be sold for the payment of his debts or legacies.” See also sec. 5996 Rev. Stats. There has been no breach of this condition of t.he bond. The land was not sold for any of the purposes mentioned in the condition. The land was sold twenty years after the appointment and qualification of the executor and seventeen years after the final settlement of the executor in the probate court. See Ward v. Barrotes, 2 Ohio St., 242.
    The sale of Speer, as executor, was unauthorized and illegal. Saum was a party to the suit; was duly summoned; made no objection to the sale. She and the other “ Heirs,” who were all parties to the suit, are estopped to deny the legality of the sale, but the sureties on the executor's bond, who were not parties, and who did not consent to the sale, are not so estopped. They stand as they have a right to stand, upon the very words of the bond. Me-Q-ovney v. State, 20 Ohio Rep., 93; State v. Medary, 17 Id., p. 554. The sureties not being parties to the proceedings are in no way bound by the decree of the court ordering a sale, and the decree of distribution of proceeds of sale, if the sale and confirmation were unauthorized. 'Quinby v« Walker, 14 Ohio St.,' 193.
    
      N. B. Warwick, for defendant in error.
    
      I. The burden was on plaintiffs in error to show that the settlement made May 27, 1859, was a final settlement. It was not a final settlement, but an account current. The court did not treat the account as final. The executor did not treat the account as final, or file it as a final account, or consider the estate fully settled. The bondsmen of Speer were at no time discharged by the probate court. This is conceded by them, and it nowhere appears that they made any objection to Speer, the executor, for whom they were bondsmen, selling the real estate, as such executor. Yet Flickinger testifies that he was “in business with Speer at the time the farm was sold,” and lived six miles from the land, which was sold at public sale, so that he at-least must have known what Speer was doing, and that he was selling real estate as executor of John H. Thomas.
    II. But besides being considered by all parties as such executor, as well as treated as such by the probate court, the court of common pleas and district court, in all the proceedings in the case for the sale of real estate, and also that making the distribution of Eleanor Thomas’ estate, Speer’s duties under the will of John H. Thomas, by its very terms was to continue and not cease until either the death or re-marriage of Eleanor, his widow. She did not re-marry, and lived until March, 1875.
    Speer’s duties as executor were generally to fully execute the will; specifically, they required him,
    1. To collect and receive the estate wherever found.
    2. To pay the debts of 'John H. Thomas.
    8. To pay the balance, if any, to the widow for her use during life if she remained a widow.
    4. After the wife’s death or re-marriage, to pay the debts of her contracting, which the will as well as the district court, say are his debts.
    5. To divide the balance of the property, real and personal, among the grandchildren, as they become of age.
    The first, fourth and fifth duties remained unperformed at the death of Eleanor Thomas.
    III. By the decree of the district co-urt, $447.35, which was personal property, was ordered paid over to the executor of John H. Thomas (Speer), and treated as the remainder of said estate (that is, pass under the will to the grandchildren). Who would receive this money if Speer had eeased to be executor in 1859?. The express purpose of the will was to have some one at the death or re-marriage of the widow, that would pay her debts and receive and divide any balance of the proceeds of his estate she might not have used.
    Speer did receive this $447.35, the personal estate of John H. Thomas, as his executor, and accounted for it in his account as such in 1878. The $447.35 was merely a surplus over and above what the widow required for her use during life, and was accumulations to the personal estate of John H. Thomas from 1859 up to 1875. In course of nature the widow was liable to marry or die at any time, and mere lapse of seventeen years raises no presumption that the trust is ended. Indeed, the presumption is the other way, that the trust is contingent and continuing. McAfee v. Phillipps, 25 Ohio St., 374-377; Taylor et al. v. Thorn, 29 Id., 569-576. This last case I claim, is directly in point. This case is followed in Laifertii v. Shinn, 38 Ohio St., 46.
    IY. Now as to payment of wife’s debts. The husband wisely provided for their payment before any property should be divided to the grandchildren. The executor was charged with the duty of paying her debts; no person else had any authority to pay them. The district court found and decreed that her debts were his debts, as fully as though they were of his contracting, and of necessity they could not be estimated or paid until after her death or re-marriage. The assertion that the real estate was not sold for the payment of any debts due from the estate of John H. Thomas is not warranted by the facts.
    Plaintiffs in error claim they were no party to the proceedings to sell the real estate, and hence they are not bound by any of the findings in that case. They were not required to be parties. Section 6142 Rev. Stat. They also claim that the real estate was not sold for the payment of any of the debts of John H. Thomas. The judgment and decree of the district court in the case where the real estate was sold shows tills claim to be untrue. These plaintiffs in error have no right to contradict or collaterally impeach the finding and decree of the district court. That the real estate was properly sold, there can be no doubt, and any proceeds of real estate received by the executor is covered by the exact terms of the bond sued on.
    V. But the will of John II. Thomas required of Speer another duty, viz: to divide the estate equally among the eighteen grandchildren “as they become of age.” Speer says “ a great many of the heirs were minors at the time the land was sold.” Plaintiffs in error claim the grandchildren could divide the land themselves. This is clearly untenable and the division impossible, for two reasons: First — Because the real estate consisted of 80^^- acres in one tract, 1 acre in another tract, part of lots 24 and 26, and lots 2, 19 and 20 in Jacksonburg, and an equal division could not be made. Second — Because it was to be divided equally as they became of age. Who would do the dividing, the youngest or oldest? How many divisions would there be? Who would pay the debts of the wife’s contracting, (which would have to be paid before a division), the youngest or oldest? The idea is ridiculous and plainly was not intended by the testator, but he intended to leave some one who 'would take the estate in charge at the death or re-marriage of his widow, pay all debts she left, and divide the remainder equally among the grandchildren as they arrived at the age of discretion.
   Martin, J.

The original action against the sureties was for a breach of the following condition of the executor’s bond:

'■'•Secondly: Shall administer according to law, and to the will of said testator, all his goods, chattels, rights and credits, and the proceeds of all his real estate, that may be sold for the payment of his debts, or legatees, which shall at any time come to the possession of the executor, 'or the possession of any other person for him.”

The default assigned was the failure to pay over proceeds of remainders in real and personal estate which had been converted into money by the executor. The sureties claim that the conversion was not authorized by the will or statute, and that consequently the alleged default was no breach of the condition.

The executor was appointed in 1856. ' In April, 1859, he bad paid all the debts and turned over unconditionally all the personalty to the widow, and settled an account in the probate court. Presumably he1 had no remaining duty to perform. There were no debts or legacies to be paid, and he had no right to retain assets. The devise to the widow was of all the personal property, and was in its nature specific. The assent by the executor was a relinquishment of all claim to the property and perfected the title of the widow and the remaindermen.

The real estate was sold professedly to pay a debt of the widow, and divide the residue of the proceeds among the devisees. As we have seen, the testator gave to the widow with power of sale, &c., all his real and personal estate so long as she should remain his widow, and upon her death or marriage, the remainder to be equally divided among his grandchildren, as they became of age.

The only objects of his bounty were his widow and grandchildren. His manifest purpose was to provide a support for her during -widowhood, and when that object was accomplished to pass to his grandchildren all .that might be left. To carry out this purpose'he gave her a life estate determinable upon her marriage; and the more conveniently to ensure her comfort he charged upon the remainder her proper debts outstanding'at her death. To the grandchildren he gave a vested interest in remainder in the unconsumed personalty, and a remainder in fee in the realty after the determination of her life estate, the same to be divided equally among them as they become of age.

The words of devise to the widow are not inconsistent with a fee in remainder. And it is well settled that where, as in this instance, the devise in remainder is of the entire beneficial interest, it carries a fee unless its words clearly manifest a contrary intent. It is also clear, both on principle and authority, that a devise in fee is not to be modified or fettered with a trust, by construction of its words, unless they plainly show that such was the intention of the testator. Such an intention is not to be imputed to him upon mere conjecture. We are to read this will in the light of these principles. It must be conceded that .there was no express duty imposed on the executor with respect to the remainders. It is claimed that it was his duty to convert the remainders into money by necessary implication from his duty, also implied, to pay the charge and to divide the land. The liability of the sureties hinges on the question whether the words of gift to the grandchildren of necessity raise an implication of trust for the purposes of exoneration and division. The. widow survived the testator about twenty years. At the date of his will the grandchildren were probably all under age. The words of the clause relative to a division of the remainders, by strict and natural construction, indicate that the testator thought it probable that the life estate would determine before any of them would attain majority. The event was otherwise. But whatever may have been his precise view it is clear that he gave no direction to the executor to make the division. Doubtless a division of the small farm and lots could not be conveniently or advantageously made on account of the number of grandchildren surviving the widow. But the testator gave no direction to sell. Even if he had, the mere nomination of an executor would not have conferred authority on' him to sell. It must further appear that the proceéds of sale should pass through his hands for payment of debts or legacies, or to serve some clearly expressed object of the will. It might have been expedient for ■ the testator to have expressly directed a sale by the executor, or to-have impliedly done so by directing'him to pay the charge and make the division, or imposing such duties as could-only be discharged by first making a sale.

He neither directed a sale nor imposed such duties.

The intervention of the executor in procuring a judicial sale may have been convenient and acceptable to the devisees. But this is not enough to involve the sureties on Ins official bond. To implicate them it must have been in discharge of his duty as executor, and furthermore within the limit of the spécific duties named in the condition above quoted, and not merely under semblance and as agent of the devisees or otherwise.

The rights of the devisees to their aliquot shares would have been regarded in proceedings to enforce the charge; or could have been enforced in partition where the charge would be provided for. We are unable to find an intention on the part of the testator to create any trust whatever in respect to these remainders.

It was not the duty of the executor to pay the debt left by the widow. The testator, as we have seen, provided an ample security for its payment. There he stopped. By-accepting a devise of the fee charged with the debt, the devisees became personally bound to pay it. Thompson v. Thompson, 4 Ohio St., 333; Decker v. Decker, 3 Ohio, 166. It was the debt of the widow, and on her death became the debt of her estate- and of the remaindermen. It was not the debt of the testator in any^ proper sense. Much less can it be said to be one of “ his debts ” in the strict sense in which these words are used in the sureties’covenant.

The fact that Yeager recovered judgment against the executor as such for the amount of the widow’s debt does not affect the sureties. They were not parties'to the suit, nor in any manner concluded by the judgment. As the estate was not bound for the debt the judgment does not conclude them. Curtis v. Bank, 39 Ohio St., —.

Nor are the rights of the sureties affected by the judicial proceedings resulting in a sale of the land and the order of distribution. Those proceedings throughout rest upon an unwarrantable assuniption of power and duty of the executor under the will. And it does not appear that the sureties participated in or had any knowledge of the transactions.

It follows that the liability of the executor for the money due Mrs. Saum is not official, but personal only; and his failure'to pay is not a breach of the condition.

Judgments reversed.  