Lucas Circuit Court.

opportunity offers his real estate in the city of Toledo, Ohio, or any that he may acquire in any other state.

It is a matter of quite serious doubt in our minds as to whether or not, under these provisions of the will the doctrine of equitable conversion applies to this case. But assuming that the language is sufficiently clear and express to give that effect to it, let us look for a moment to the case of Patton v. Patton, 39 O. S., 590, which seems to have a very important bearing upon this case. In that case the will, the true construction of which was being sought for by the parties and considered by the court is set forth in extenso, or appears to be; and by that will there were in the first place the provisions that the funeral expenses of the testator shall be duly paid, and then follows.

"2d. Allthe remainder of my personal estate, including moneys, rights in action, household goods and goods of every kind, and chattels, I give and bequeath to my wife, Betsey Ann Patton, during her natural life, and at her death, to my grandson, Joseph Frank Patton.

"3d. I give and devise to my wife, Betsey Ann Patton, all my real estate during her natural life, and at her death I give and devise the same to my grandson, Joseph Frank 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 successors in office, the possession and control of my said real estate, and direct that he may apply the income from said real estate to the proper support, maintenance 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."

And here comes the important part of it:

'5th. If my said grandson, Joseph Frank 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 properties 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, whose 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 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 chil dren, then I give and bequeath to said child or children all moneys and property herein before mentioned, and devised, such child or children to take said real estate in fee simple."

And he then appoints an executor with authority to make public or private sale of his personal property for the payment of debts.

"This is a civil action," the statement of the case says: "brought by James H. 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 to be the owners 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

Huidekoper v. Perry et al.

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 of the will, and to pay the proceeds to whomsoever entitled."

It was claimed in the argument by counsel for Joseph Frank Patton, that the estate, both real and personal, "is now property undisposed of by the will of Joseph D. Patton; that it became intestate property at the time of the death of Joseph Frank Patton, without children, and not before; that the death of Frank Patton without child or children is a contingency unprovided for in the will. It is true that it was provided for, but the provision being void (the fifth clause of the will), it is the same in law of 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 cannot be claimed that this property was intestate property at any time during the life of Joseph Frank Patton."

Counsel for Joseph D. Patton's executor claimed this :

"The language of the will is imperative: 'I direct my said executor or 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."

This is, as I understand it, the argument that is made on behalf of this executor. Counsel proceed to say:

"An absolute direction to sell, effects a conversion, though the intended beneficiary (a charity) be incompetent to take; the will having been executed within one month of testator's death."

Counsel for certain of the brothers and sisters and the administrator of Joseph F. Patton, claimed, among other things, "as to the real estate of the testator we contend that it was stamped with the character of personalty by 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 to be sold and converted into money is treated as personal estate, and governed by the statute of distribution."

I have read so much from the points presented by counsel to show how nearly the question presented here corresponds to the questions that were disposed of by the court in the case of Patton against Patton; it being there insisted by different counsel representing the different interests in the case that the direction to the executor operated to convert it into personalty, and to bring it, therefore, within the rules governing the disposition of personalty.

McIlvaine, J., says:

"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 dispute should be sold by the executor, and the proceeds equally divided between the missions. But, 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 30, 1874, and in the act of 1883."

"In behalf of the missionary boards it is contended that this proviso does not apply to a bequest contingent upon the extinction of lineal de

Lucas Circuit Court.

scendants. This contention is based on the assumption that lineal heirs alone may object to such bequest, as the proviso was for their protection alone. But this assumption is not authorized by the statute. We can see no reason why anyone 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."

After considering another proposition presented in the case, the court come directly to the main and important question to be determined:

"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. Remainder 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, therefore, 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 Josesh 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, the power of sale fell with the bequests. The direction in the will is, that 'If my said grandson, Joseph Frank Patton, die leaving 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

Huidekoper v. Perry et al.

Missions.' True, the contingency happened upon which the testator intended the power 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 learned judge then proceeds to cite from a paragragh of Williams on Executors, language which very strongly and clearly expresses the view that he had laid down.

Our conclusion, therefore, is, that upon this, one of the main propositions, the will itself did not by its terms, contain such an imperative direction to convert this real estate into money, or to dispose of it for the purposes contemplated, as make the equitable conversion claimed on the part of counsel for the plaintiff in error. If it did that, under the ruling made by the supreme court in the case of Patton v. Patton, supra, which I have read, then the power to sell for a particular purpose, which purpose was declared to be inoperative and illegal by our statutes, would not make any special difference in the rules of law to be applied. This would not withdraw the devise from the operation of the statute which inhibits the making of a will, or which prevents the giving effect to terms such as are here in question, unless the testator shall live for a period of twelve calendar months beyond the date of the will.

There is another question made here which I will briefly notice: "Any property not specifically disposed of in the foregoing will shall, if not already invested, be put into a productive shape and after the wants of the estate have been abundantly provided for, any surplus income shall be divided into three equal parts and given to my wife and each of my daughters."

There was no provision of this character contained in the will in the case of Patton v. Patton, supra, and it is insisted here that if the devise fails by reason of the statutory inhibition, and is inoperative on that account, then it may be regarded as coming within the operation of the clause disposing of property not otherwise specifically disposed of. That is to say, if this clause is to be held inoperative and invalid, because contrary to the statute, that it is not specifically disposed of, and therefore it may pass under the clause which provides as to what shall be done with property not specifically disposed of. But we are unable to see our way clear to adopt the view ingeniously stated by able counsel, supported partly by authority I must confess, by which it is sought to give effect or to pass the property by virtue of this clause as to property not specifically disposed of. It seems to us that it would hardly be a proper construction of the will or of the statute to hold that where a testator has sought to make a specific disposition of property, or a disposition of property by terms, and that disposition has failed, that bequest or devise fails to become operative by reason of being in violation of statutory regulations--nevertheless may come within a clause making a disposition of property not specifically disposed of. We can hardly understand or suppose that if the testator had understood that operation and effect was not to be given to the clause which presents the principal question here, he was in that event disposing of the property by the clause here in question.

Sandusky Circuit Court.

There are other questions mad in the record of the case; but in view of what has been suggested as to the proposition that we have passed upon, we do not think it necessary to express an opinion ipon them. For example, we hardly think that it is necessary for us to say as to whether or not this devise is void for uncertainty. It is sufficient, it appears to us, that it comes within the language of the statute which forbids the disposing of property in this state for charitable or benevoient purposes unless the testator shall have survived the execution of his will at least the period of one year.

We desire to acknowledge our obligations to counsel for the very important assistance rendered us in the collection, arrangement and presentation of the authorities and of the books bearing upon this important proposition.

Swayne, Swayne & Hayes, Attorneys for Plaintiff in Error.
H. Goodwin, Attorney for Defendant in Error.

CONSTITUTIONAL LAW--TAXES AND TAXATION. [Sadky ircuit Court, May Term, 1897.]

King Hornes and Parker, JJ.

STATE EX REL. JOHN NEMAN, TREASURER, V. JOHN FANGBONER.

AUDITOR.

THE ACT OF THE GENERAL ASSEMBLY PASSED APRIL 7, 1896, is UNCONSTITUTIONAL AND VOID.

Thet of the general asscinbly passed April 27 1896 (92 O. L., 748), which provides that all taxes collected from oil wells ot exceeding 2,500 per annum, hould be returned to the township treasury where such wells are located and be used as a road fund in such township, is unconstitutional and

void.

PETITION FOR MANDAMUS to require the county auditor to p over money to certain townships in San lusky county as provided by the act of the general assembly of the state of Ohio, passed April 27, 1896 92 O. L., 748.

HAYNES, J. (oraily.)

A petition for mandamus has been filed in this court praying that a writ may issue requiring the defendant to perform certain acts. The appearance of the auditor has been entered in the case and demurrer has been filed to his petition. Strictly speaking, in practice, perhaps the demurrer at this pot is not the proper remedy. The supreme court however has held that the question of the sufficiency of the petition may be raised by the court in deciding whether it will allow a writ to issue The writ shall not issue unless it shows upon its face that there is a proper cause of action. Mr. Nieman states that he was the duly elected treasurer of Woodville township, and says Woodville township has a large amount of land containing and producing mineral product to-wit, oil, that there is drilled and now in operation in said township a large number of oil wells producing mineral products, to-wit: oil, and that there will be hereafter, a large number of wells drilled, which in all probability, will produce a large quantity of oil.