Elstner v. Fife. ELSTNER v. Fife. 1. It is not error to overrule a general objection to all the testimony of a witness, where part of it is admissible. 2. Where a testator makes no disposition of his real estate, other than by directing that it shall be sold by his executors, and the proceeds paid to a trustee, named in the will, for the benefit of certain legatees, the legal title to his real estate descends to his heirs, subject to the execution of the power conferred on the executors; but the right of possession passes with the will to the executors, to enable them to effect the objects of the testator. 3. Where such executors, after accepting the trust, resign their office as executors, their authority to execute the power of sale conferred by the will upon them as executors, expires with their office. 4. Under the provisions of section 59 of the wills act of March 23, 1840, as amended March 8, 1845, where a will directs land to be sold by the executors, and they resign without having executed the power, the sale or conveyance, or both, may be made by an administrator with the will annexed. 5. Where an administrator with the will annexed, in the execution of such power, sells land and gives the purchaser a title bond and possession of the premises, the purchaser acquires thereby an equitable right, on payment of the purchase price, to a conveyance of the land; but such pur. chaser has no right to demand a conveyance until the purchase-money is paid. 6. Where such administrator resigns his office, and wholly abandons the administration of the estate, his authority under the statute to execute such power conferred by the will ceases; and a deed, made by him afterward, of land sold to him while in office, and before the purchaser is entitled to a deed, conveys no title to the land. 7. Where neither party has the legal title, the rule which protects a bona fide purchaser without notice does not apply; and where, in such case, the equities are equal, the oldest equity must prevail. Nor is the rule available against one who unites in himself both the legal and equitable title. 8. Where a testator directed his land to be sold by his executors, and the proceeds to be paid, at a specified time, to certain legatees to whom he bequeathed his whole estate; and, in execution of the power of sale, the land was sold, and possession with a title bond was given to the purchaser, but the purchase-money had not been paid nor the conveyance of the land made when the time arrived for the payment of the money to the legatees: Held, that the legacies were an equitable charge upon Elstner v. Fife. the land, and that the legatees had the right in equity to subject the land to the payment of the purchase-money. ERROR to the District Court of Clinton county. On the 4th day of March, 1870, John C. Elstner and Eliza J., his wife, and Thomas B. M. Jeffrey and Mary E., his wife, brought their action in the Court of Common Pleas of Clinton county, against Matthew Fife, James Killen, surviving executor of Joseph Reed, deceased, Oliver F. Mitchell and wife, and Chauncey F. Truesdale, heirs of Beebe Truesdale, deceased, and Levi Gustin, administrator de bonis non of Joseph Reed, deceased. They allege in their petition that Eliza J. and Mary E. are legatees of Joseph Reed, a resident of Clinton county, who died in 1848, the owner of part of lot No. 69, in Wilmington, in said county, and that Beebe Truesdale and James Killen were, by the will of Joseph Reed, made executors of the will. Killen and the heirs of Truesdale are made parties. They aver that the executors proceeded to settle the estate, and collected assets to the amount of $364.39, and paid debts, including allowances to themselves, amounting to $269.80, leaving in their hands, April 3, 1849, $94.78, when they resigned, and that the personal property was more than sufficient to pay all the debts of the estate, which is not denied in the answer. They aver that the will of Joseph Reed directed his executors to sell his real estate, and pay over the proceeds thereof, to be invested for the benefit of said Eliza J. and Mary E., daughters of the testator; but that the executors neglected to make such sale, and, on the 3d day of April, 1849, resigned, when Levi Gustin was appointed administrator de bonis non of the estate, who accepted the trust and gave bond as required by law. They aver that the proceeds of real and personal property of the estate was to be, by the terms of the will, divided between the said legatees at the beginning of the Elstner v. Fife. year 1870, and they make a copy of the will a part of the petition. They allege that Matthew Fife is in possession of lot No. 69, claiming title thereto; but they say he has no title as they believe; or if any he has, they hold it in trust for said legatees. They pray that the surviving executor, and the heirs of the deceased executor, may be ordered to convey said lot to said legatees, or that they execute the trust; that Fife may disclose any title he may have; that he may be held as a trustee for the benefit of the legatees; that an account may be taken of rents, and for any relief they may be justly entitled to. The will is as follows: "1. It is my desire that all my just debts and funeral expenses be fully paid. "2. Believing that the laws of the state make ample provision for the widows of persons dying intestate, I give and bequeath to my beloved wife, Lucy Reed, formerly Lucy Peebles, all the property which she would hold under the law as my widow, precisely the same as if I had died intestate. "3. I give and bequeath to my negro woman, Snid, now residing in Barren county, Kentucky, her full and perfect freedom, hereby manumitting her free. "4. On condition that she shall voluntarily remove to and reside in the State of Ohio, I give and bequeath to her, the said Snid, in addition to her liberty, a comfortable support, to be furnished her out of my estate by the trustees hereinafter named, or appointed as hereinafter provided, when, from sickness or old age, she is unable to support herself out of the proceeds of her own labor. If, however, she is unwilling to remove to Ohio, and my bequest of manumitting can not by reason of legal impediments, be carried into execution in the State of Kentucky, then I desire that she shall be held by said trustees as a servant in Kentucky, who shall hire her to such person or persons as she may desire to live with there, and appropriate all the avails (whether earned Elstner v. Fife. heretofore or hereafter) of her labor, to her sole benefit and use, seeing to it that the same are not foolishly and imprudently squandered, but economically applied to her own support when she shall stand in real need of the same, and in no event shall the proceeds of her labor, or any part thereof, be applied to any purpose except for her own use, unless she shall, in her last illness, desire some other or different appropriation of any residue of the same, after her decease, and then such residue shall be appropriated by said trustees as she may desire. "5. I desire, and hereby direct my executors, or the survivor of them, to sell and convert into money as soon as the same can be done on good terms and without sacrifice, all my property, both real and personal, hereby expressly authorizing them or the survivor of them to sell either at public or private sale, and on such reasonable terms as will be most conducive to the interest of my estate, and to pay the money thus acquired into the hands of the trustee hereinafter named, and to take his receipt therefor, which shall be a full and complete voucher to them for the same. "6. I desire, and hereby direct my trustees, hereinafter named, or appointed as hereinafter directed, to invest the moneys received as aforesaid from my executors as soon thereafter as the same can be prudently done to the best advantage for my estate, in the stock of some safe and solvent bank, and as dividends shall accrue thereon he shall, from time to time, make a like investment of them, until the year of our Lord one thousand eight hundred and seventy, and that said trustee shall have, for his care and trouble about this business, whatever the court of common pleas within and for Clinton county may allow to him as a reasonable compensation for the same. "7. I give and bequeath to my two daughters, Eliza Jane Reed and Mary Elizabeth Reed, and to the issue of their bodies, or in the event that either of them shall die without issue, then to the survivor and her heirs forever, to be paid over to them in equal moities, that is to say, to Elstner v. Fife. the said Eliza Jane and Mary Elizabeth in the year A. D. 1870, and not before, by my trustees, hereinafter named or appointed as hereinafter directed, if they shall then be living. If either of them shall have died previously to that time leaving children upon her body begotten, then I desire that those children shall take her portion; but if either of them shall have died at that time without issue, then I desire that the survivor of them and her heirs shall take the whole of my property which has been required to be given, as set forth above, to the trustees hereinafter appointed as hereinafter directed. "8. I do hereby name and appoint David Linton a trustee, to receive and hold all moneys and property hereinbe fore directed to be placed in the hands of a trustee or be queathed to a trustee for, and during the time therein specified, and to execute all trusts herein created, that he shall render unto the court of common pleas within and for the county of Clinton, Ohio, a true and faithful account of all his proceedings as such trustee at least once in five years, and oftener if thereunto required by said court; but previous to his receiving any part of my estate, I do require him to enter into a bond, payable to the legatees named in the seventh item of this will, conditioned for the faithful execution of the trusts imposed by this will, in such an amount and with such freehold securities as said court may approve, that in the event of the said Linton or his failure to comply within a reasonable time with the requisi tions aforesaid, then I direct my executors to make appli cation to said court to appoint some good and respectable man to take such bequest and execute such trusts as are conferred upon said Linton, requiring him to enter into the same kind of a bond that I have of said Linton. "9. And finally I do constitute and appoint Beebe Truesdale and James Killen executor of this, my last will and testament, hereby revoking all former wills by me made." The defendant, Fife, answered that Levi Gustin, as administrator de bonis non with the will annexed, of Joseph Reed, sold said lot No. 69 to Isaac Strickle and George D. |