181 Ill. 182 | Ill. | 1899
delivered the opinion of the court:
In sustaining the demurrer and dismissing appellant’s bill for partition we are of the opinion the learned chancellor of the circuit court decided correctly. We deem it unnecessary to consider the defects in the bill, other than the fatal one that it showed no title in the complainant.
By the terms of the will, the widow having died, all of the real estate which Jeremiah Botkin would not accept under the second clause of the will must be sold by the executor, unless the beneficiaries should, by agreement, divide it among themselves, and the proceeds of such sale must be distributed equally among the testator’s children named in the second clause, “deducting” (in the language of the will) “from the share of either any obligation or indebtedness they may owe the estate.” Such was evidently the intention of the testator, as appears from a consideration of the entire will and all of its parts. The expression in the third clause, of his desire that the “heirs” (meaning his children) divide the land among themselves if they can do so, confers on them no right or power which they would not have had without it, for it is well settled that, even where by a will there is an equitable conversion. of real into personal property by a direction contained in the will to sell and distribute the proceeds, the distributees, if they all agree, may elect to take the land and dispense with the sale. (Baker v. Copenbarger, 15 Ill. 103; Ebey v. Adams, 135 id. 80; Matter of Corrington, 124 id. 363.) And this will merely follows the law, that all must so agree or elect to take the land else it must be sold'as directed, for each has the right to have the will carried into effect and to have the whole of the land sold, and not some undivided part of it. (Ibid; 3 Pomeroy’s Eq. Jur. 143.) No such agreement or election to re-convert, or to take and divide the land, having been made, the duty devolves on the executor to sell it and distribute the proceeds. This duty is not discretionary, but is by the will expressly enjoined. There is, therefore, by the will an equitable conversion of real into personal property, and Ira Botkin took no title to the land which was the subject of levy and sale; and, as said in the cases above cited, it is immaterial whether the title descended to the heirs-at-law or passed by the will to a trustee, for, in any case, it is held in trust for the purposes of the will. As said in Baker v. Copenbarger, 15 Ill. 103, each of the beneficiaries has the right to insist that the land shall be sold, unencumbered and unembarrassed by any act done or suffered by any of the others.
It is contended, however, that by the third clause of the will the land is in terms devised to Ira Botkin and the other four children of the testator therein named, and that that clause should prevail over the subsequent one in conflict with it. It is a cardinal rule that the entire will should be construed together and be made to harmonize and effect be given to every part, if possible, and that the intention of the testator as expressed in the will should be ascertained and carried into effect. We find no necessary conflict between the two clauses. It is evident from the third clause that the testator intended that the indebtedness of any one of his children to the estate should be deducted from his share of the estate, and that they should thus be made equal; and from both the clauses together, that the division and distribution should be made in personal property altogether, unless they agreed among themselves that as to the land they would take it as land. It may be remarked, also, that no such division of land could be made without the previous election of Jeremiah Botkin to take or not to take the land mentioned in the second clause of the will. The bill shows nothing on this subject.
As indicated, we are of the opinion that as to all the land mentioned in the will, except that which may be taken by Jeremiah Botkin under the second clause of the will, there was by the will an equitable conversion into money, and that the First Bank of Macksville took no title by its purchase and deed under the execution sale against Ira Botkin. It follows, of course, that the deed of the receiver of the bank conveyed no title to appellant.
The decree of the circuit court sustaining the demurrer and dismissing the bill is correct, and it will be affirmed.
Decree affirmed.
