Aldenderfer, Exr. v. Spangler

MAUCK, P. J. The executor of the last will of Aaron Spangler, deceased, filed his petition in the Pickaway Common Pleas, attaching a copy of the will and doubting his power to- sell thereunder. He also asked for the power to sell said estate. The provision of the will in substance was that after the death of the testator’s wife, certain real estate was to be sold by the executor and divided in five parts and given to certain beneficiaries. The will was duly probated and the widow accepted thereunder. Since her acceptance she has made a conveyance pf her life estate to the beneficiaries. It is claimed by Aldenderf er et al. that- they had a vested remainder by the will, and the life estate of the widow by deed, and no reason exists why the power to sell should not now be exercised. This case upon these facts comes in the court on appeal. The Court of Appeals held: 1. The power of an executor does not proceed from the interests of the devisees, and is not affected by the character of such interests. It arises from the language of the testator conferring the power to sell and can only be exercised in the manner prescribed by will. 24 CJ. 170. 2. It is forcibly argued that the remainder-man’s estate has been accelerated by acquisition of the life estate and that the power of the executor has likewise been accelerated. 3. The Supreme Court in the leading case on the doctrnie of acceleration says, that the remainder estate is accelerated, “in every •event which removes the prior estate out of the way”. 78 OS. 276. 4. The words of the Supreme Court are not explained, but in 220 Ill. 480 where similar fads were presented the court held: — “the conveyance of the life estate to another does not amount to a destruction or a removal thereof.” 5. In view of the fact that the Ohio and Illinois courts have both adopted from Jarman on Wills (Vol. 1, p. 568) the doctrine of acceleration and the Illinois case holds that conveyance of life estate is not such removal, it follows that there has been no acceleration in this case. 6. By item seven of the will the testator further provided that other property owned by him should be sold by the executor during life of the widow but the proceeds should not be fully distributed, the executor being required to hold same to pay for taxes and upkeep on this property of the widow. 7.To permit a sale of the lands would not only violate item five, but would render futile item seven and to grant the prayer of the petition would not promote the inétntions of the testator. Petition dismissed. (Sayre & Middleton, JJ., concur.)