Schaupp et al v. Jones et al.

[Vol. III, N. S.

that he did not look at all, and that with the curtains down he drove deliberately upon the tracks of the company.

How can it be said under these circumstances that he exercised due care and that the verdict of the jury is justified by the evidence? The judgment of the court below must be reversed upon that ground also. For these reasons the judgment of the common pleas court is reversed and the cause remanded for a new trial.

Theodore Hall, for plaintiff in error.

A. G. Reynolds, Bosworth & Hannan and C. W. Osborne, for defendant in error.

POWER IN EXECUTORS TO SELL.

[Circuit Court of Hamilton County.]

ELIZABETH SCHAUPP ET AL V. THOMAS JONES ET AL.

Decided, June 20, 1902.

Will-Title to Real Estate, Proceeds from the Sale of Which is Devised-Sale May Be Avoided, How-Implied Power in the Executors to Sell.

1. Where a testator provides that land shall be sold and the proceeds thereof divided equally among four persons, no one of the devisees acquires title to the property under the will, but the devisees might, by all uniting, avoid a sale by the executor, and take the premises instead of the proceeds therefrom.

2. The power to sell land and distribute the proceeds to devisees in accordance with the will is a power that may be inferred from the expression in the will, "firmly believing they (the executors) will carry out the directions of my will," in the absence of express power thereunto.

GIFFEN, J.; SWING, J., and JELKE, J., concur.

The plaintiffs in error claim title to an undivided one-fourth interest in certain real estate under the following provisions of the last will and testament of Benedict M. Mueller:

"My house in Cincinnati, 608 Fulton avenue (which I inherited from my dear late father, Nicholas Mueller, to be sold. and the proceeds likewise to be divided into four parts, to-wit:

First part to St. Rosa's Catholic Church in memory of deceased parents and myself. Second part to my brother, Andrew Mueller, or in case of his death, to surviving family. Third part to Most Rev. Archbishop Elder, or his successor, in favor of orphans of the diocese. Fourth part to my cousin, Mrs. Elizabeth Schaupp (nee Gebhart) or (in case of her death) to her children. Benedict M. Mueller.

"P. S. I, as executor of this will, appoint Rev. B. H. Engbers, Ph. D., of Cincinnati, and Edward Powell, of West Jefferson, Ohio, without bond, firmly believing that they will fully carry out the directions of this will."

In the first place, Elizabeth Schaupp acquired no title to the real estate under the will, as the gift was a bequest of money, and although all of the legatees might, by uniting in the request, have avoided a sale by the executor and taken the premises instead, still no one of them could alone do so.

The executor having sold the house and lot, it is claimed that he did so without authority. There is no express authority conferred upon the executor to sell or divide the proceeds of sale of either the personal or real property, and after signing the will it evidently occurred to the testator that he had appointed no one to carry out his will. Hence in making the appointment he uses the language, "firmly believing that they will fully carry out the directions of this will." While these words do not amount to a command or direction to the executors, they express the wish and desire of the testator that the person so appointed shall execute the will as he directs. In other words, they express such intention on the part of the testator.

We think, therefore, that the judgment should be affirmed. Arnold Speiser and David P. Schorr, for plaintiff in error. Charles T. Dumont, contra.

Simmons et al v. Moore's Administrator. [Vol. III, N. S.

HOMESTEAD EXEMPTION.

[Circuit Court of Ashtabula County.]

F. R. SIMMONS ET AL V. ADMR. OF SARAH J. MOORE ET AL.

Decided, October Term, 1897.

Homestead-Exemption in Lieu of, May be Allowed on Distribution— Where a Debtor Has Placed Himself in Position to Demand ItSubsequent to the Order for Sale-Such Action not a Fraud on Creditors-Exemption Superior to Judgment Liens.

1. A court has authority to grant or refuse an allowance in lieu of homestead, upon an application made subsequent to the fixing of priorities and issuing of the order for sale, the determination upon the application to depend upon the circumstances existing at the time of distribution.

2. It is not a fraud upon his creditors for a debtor by marrying to put himself in position to demand an allowance in lieu of homestead. 3. Marriage having occurred, and demand for homestead exemption having been made and allowed subsequent to the decree fixing the amounts and priority of liens, the allowance for homestead becomes superior to the judgment liens, and the lienholders take that much less.

FRAZIER, J.; LAUBIE, J., and BURROWS, J., concur.

Heard on error.

Proceedings in error are prosecuted by F. R. Simmons and others, claiming to have liens by reason of levies made after the death of Sarah J. Moore on executions issued on judgments against A. U. Moore.

A. U. Moore, as administrator of his wife's estate, commenced proceedings in the probate court for the sale of the real estate of his deceased wife. It is an uncontroverted fact that Mrs. Moore was insolvent at her decease.

The administrator made not only himself, as heir, but the mortgagees of his wife parties, and averred that certain other parties claimed an interest in these premises, as creditors of the surviving husband, who was also administrator.

The case was disposed of in the probate court, which, under our statute, had full jurisdiction in the matter and authority to determine the validity and priority of the liens. The case

was then appealed to the court of common pleas and was submitted in that court upon an agreed statement of facts. The case was disposed of by the learned judge of the court of common pleas, and his opinion is published in Moore v. Moore, 6 Dec., 154. We only propose to remark upon such matters as are urged in this hearing as do not appear to be directly alluded to in that opinion.

By the agreed statement of facts, it is shown that A. U. Moore received an order of sale from the probate court in this proceeding for the sale of all of the real estate of which Sarah J. Moore died seized on November 18, 1895, and that on said date he received an offer for tract 1 of said property from Richards Brothers, to purchase said tract for $3,500, the appraised value thereof.

That on March 14, 1896, the defendant Moore was remarried, and since that date has been a married man, the head and support of a family; that he is a resident of Ohio, and neither he nor his wife own a homestead.

That on March 19, 1896, he accepted the offer of said Richards Brothers for said tract 1, and reported to the probate court the sale, which was confirmed and deed made and delivered, and said $3,500 paid.

That on August 26, 1895, the creditors of A. U. Moore caused executions to issue and they were levied and return made by the sheriff:

"No goods or chattels of the within named A. U. Moore being found to levy, I did, on the 26th day of August, A. D. 1895, at the hour of two o'clock P. M., levy the annexed writ upon the following described real estate (describing the same real estate described in the petition filed by the administrator to sell lands' in the probate court in this case). No further proceedings by me under and by virtue of the annexed writ and the same is returned: No money made, not satisfied."

It is now inquired, what was brought into the court of common pleas by the appeal, and it is urged that the order and finding in the probate court, upon which the premises were sold, was not appealed.

One thing I apprehend is certain: There can be no question but the order of distribution in this case was appealed from.

Simmons et al v. Moore's Administrator. [Vol. III, N. S.

The appeal was perfected within the time prescribed by statute from the making of that order.

It is contended that the finding of the amount due each creditor, and the priorities, is in effect a judgment, and the finding that the creditors of A. U. Moore had obtained liens upon his dower interest by their levies not being opened up by the appeal, the proceeds of sale must be distributed as there found. We think the same rule prevails in this action, as would prevail in an ordinary proceeding to foreclose a mortgage, where other mortgagees and judgment creditors are made parties to marsha liens, and a finding of amount due each, and the priorities, with an order to sell to satisfy the sums found due. If a party is found to be entitled to an exemption in lieu of a homestead under Section 5441, Revised Statutes, it is not necessary to change the findings and order of sale. The mere fact that a lien exists does not bar the right to an allowance of homestead or exemption in lieu of it. It is allowed because in law the debtor's right to it is a higher and better right, a right more favored and superior to a judgment lien.

In McConville v. Lee, 31 Ohio St., 447, 450, it is said:

"Nor can it make any difference that previous to the sale, an order had been made that the proceeds of the sale should be applied first in payment of costs, then in satisfaction of the mortgage debt, and then in satisfaction of the judgment. The decree in that respect was within control of the court until there was actual distribution."

The only effect, so far as creditors are concerned, is that there is that amount less to distribute under the order, and they are affected just as they would have been had the premises been sold for that sum less than it brought. A lien may exist, but it is only valuable to the lien-holder if the property is not consumed in payment of prior liens or superior claims.

The demand for exemption was made by motion filed in the probate court on the day before sale. The court has authority to make or refuse an allowance under Section 5441, Revised Statutes, out of the proceeds of sale, as warranted by the facts or changed circumstances of the parties, as they exist at the time the surplus is disposed of.