This is аn action under the statute to determine title to real estate. .The land in controversy consists of 406 acres and is situated in Dunklin ’ County. Charles Birthright, who was a resident of that county and who died there December, 1911, is the admitted common source of title. He left a widow, but no descendants. The plаintiffs are his collateral heirs. By the following paragraph of his will he made disposition of his entire estate:
“Second: I give and bequeath to my beloved wife, Bettie, all of my property of whatsoever character, real and personal, to hold and to enjoy so long as she shall live. And should she at any time deem it to be to the interest of the estate, she shall notify the executor thereof of her wishes and he shall sell said property so designated at either private, or public sale, upon such terms as may seem to him best, and at her death: the exeсutor hereinafter named, is instructed and empowered to sell all of said property, both real and personal, at either public, or private sale, on such terms as may be deemed *101 by him best, and the proceeds thereof I direct to be given to the Tuscaloosa Institute аt Tuscaloosa, Alabama, to be used by it in educating young colored men for the ministry; provided however, that I should survive my wife, then at my death the executor shall sell all of said property, both real and personal, at such time and upon such terms as may be thought best by him and the procеeds thereof paid to the said Tuscaloosa Institute, at Tuscaloosa, Alabama, for the said purpose of educating young colored men for the ministry. In case the party hereinafter named as executor shall not be living at the time for executing this will or in pase for any reason he does not, or cannot serve, I desire that the proper officers of said Tuscaloosa Institute be notified and requested to nominate an executor herein.”
The will was executed October 5, 1893; it was duly probated in the Probate Court of Dunklin County, February 17, 1912, and on that datе the executor therein named, David B. Pankey, duly qualified and letters testamentary were issued to him. On October 23,1913, pursuant to notice published in accordance with the statute, he made what purported to be his final settlement as executor; it was approved and confirmed as suсh by the probate court, and he was thereupon discharged. David B. Pankey died in 1915; the widow, Betty Bir'thwright, died February 1, 1917, without having sold, or directed to be sold, any of testator’s lands.
The Tuscaloosa Institute referred to in the will was, at the date thereof, an unincorporated association engаged, under the supervision of the governing bodies and committees of .the Presbyterian Church, in educating young colored men for the ministry. The association was incorporated in 1895 under the laws of the State of Alabama, as the Stillman Institute. After its incorporation the Institute continued under the supervision of the Presbyterian Church, but entered upon a somewhat broader field of activity. Its purposes, according to its charter, are “to train colored youths in the various *102 branches of academic, collegiate, industrial and theological studies.”
In August, 1917, following the death of Bеtty Birthright,, the defendant, Stillman Institute, filed its petition in the Circuit Court for Dunklin County, praying the appointment of H. B. Pankey as trustee “to execute the-terms of said Charles Birthright’s will.” The appointment was made as prayed. Thereafter the defendant notified Pankey, as trustee, that it elected to take the lаnd itself instead of the proceeds of the sale thereof.
It seems to be conceded that at the time Pankey was appointed as trustee under the will there were no unpaid allowed claims against the estate.
The petition is conventional. After alleging that the defеndant is a corporation organized under and by virtue of the laws of the State of Alabama, it avers that the plaintiffs are the owners in fee simple of the land in controversy and claim that title to it. It further alleges that defendant claims some title, interest or estate therein adverse to that of plaintiffs, and prays the court by its decree to define and adjudge the title, interest and estate of the parties respectively, as provided by the statute.
The answer denies that plaintiffs own the land in controversy; it avers that, on the contrary, they have no interest therein whatever. Then by way of affirmative defense it sets up the facts substantially as we have stated them and on them asks a finding and decree, “that the property herein described was devised and bequeathed to D. B. Pankey, or his successor, to sell and to give the proceeds to said defendant; that said H. B. Pankey, the selected trustee, holds said- property for use of said Stillman Institute, and is hereby ordered to sell said land and distribute said proceeds to said Stillman Institute, or that said Stillman Institute is the fee-simple owner of said land.”
The reply does not traverse the facts pleaded in the answer. It consists of a legal argument, with the pleader’s conclusions of law, to the effect: (1) That defend *103 ant could not take the title to the land, even if it elected to do so, because it is a religions corporation; (2) that the will did not create a personal trust with rеspect to the land which survived the administration of the estate, because the power of sale given the executor was merely in virtue of his office; and (3) that as the administration has been closed, final settlement made and the executor discharged, the power of sale attached to the executorial office has lapsed.
The trial court found and adjudged that plaintiffs have no right, title, interest or estate in the land in controversy, and that the fee-simple title thereto is vested in the. trustee, H. B. Pankey, for the purposes of selling same and turning over to the defendant, Stillman Institute, the proceeds thereof. From such judgment plaintiffs prosecute this appeal.
Will. I. The law, without volition on the part of the ancestor, casts the realty of which he may die seized, upon the heir. It is only by some act on the part of the an-cester, usually by will, that this course of the law pe interrupted or interfered with. If there is to be any change in the devolution provided by law, it must be made to appear clearly. If it is not so expressed in terms by the ancestor, it should result irresistibly and imperatively from the general intention ascertained frоm the entire instrument, whether it be deed or will. [Compton v. McMahan,
Under the will in this case there were but two beneficiaries, the widow, Betty Birthwright, and the defendant. To the first there was a devise of a life estate in the land of the testator, with the power of disposition, but to the latter there was no dеvise of land or any interest in land. It was given money, land was merely provided as the source from which the money was to be obtained. [Ebey v. Adams,
*104
II. The executor was given no discretion with respect to the sale of the lands, upon the termination of the life estate. The direction to sell and the direction to give the proceeds of the sale to the Tuscaloosa Ins^ute were unconditional, and they were imperative. The lands were therefore converted into mоney for the purposes of the will and, according to the great weight of authority, from the testator ’s death. [Adams v. Watts Exr.,
The respondent, Stillmаn Institute, after the death of the life tenant, elected to take the land instead of the proceeds to be derived from the sale thereof. Such election, however, does not invest it with the title, appellants assert, because it is a religious corporation and therefore incapable under our law of taking the title to real estate. A corporation as to its character is to be judged by the objects of its creation as expressed in its charter. Had the Tuscaloosa Institute incorporated solely for the purpose of continuing the work in which it was then engaged, that of educating young colored men for ministry, it would no doubt be a religious corporation within the purview of Section 8 of Article II of the Constitution of Missouri. [Proctor v. Board of Trustees,
It does not follow, however, that because respondent was under no disability in respect to holding title to *105 real estate, its election invested it with the title to the land in controversy. Under the doctrine of re-conversion, only those who have the exclusive beneficial interest in the property constructively converted may elect to take it in its ’actual condition. [13 C. J. 888.] Respondent had no such interest. The gift was exclusively to a charitable use. In addition to that fact, it is manifest that the holding of the land and merely applying the rents and profits to the use mentioned is inconsistent in an essential respect with the design of the donor. He gave money, all the proceeds of the land, and not merely the income arising from it, to he used by respondent in' the furtherance of its work in educating young colored men for the ministry. For both reasons we are of the-opinion, and so hold, that respondent’s election'did not effеct a re-conversion.
III. The next inquiry is, did the executor named in the will, by necessary implication, take the fee in the land directed to be sold? In eases such as this it is ordinarily of no consequence whether it be held that the fee was devised by implication to the executor, as neсessary to enable him to execute the trust, or that it was left by the will to descend to the heir at law; in either event the title would be divested by the execution of the power of sale. The question here with respect to the fee is of technical importance only, the actiоn being one to determine title.
The general principle applicable to the execution of trusts of the character of the one in question is, that the trustee will take “exactly.that quantity of interest which the purposes of the trust require. ’ ’ If the fee is required, the fee will be takеn; if a less estate will suffice, a less estate, only, will be vested. [2 Jarman on Wills (6 Ed.) 1831.] The will in this case did not impose upon the executor any duty involving possession, control or management of the testator’s land;-it merely directed him to sell it. This naked power he could as effectively ex *106 erсise without the fee as with it. It follows that he did not take the fee by implication.
IV. In investing the executor with a power of sale, the will in this case did not create a personal trust. The power conferred is one that adheres to the office of executor and must be exercised
during the
continuance of the executorship. [Donaldson v. Allen,
It is obvious that the circuit court appointed H. B. Pankey as trustee under the will on the theory that the directions to- sell the land and make application of the proceeds created a personal trust which survived thе final administration of the estate. For the reasons indicated that view was erroneous. The circuit court was without jurisdiction, consequently its order appointing a trustee was a nullity.
V. In view of the foregoing, it must be held, on the conceded facts, that plaintiffs have the naked legal title in fеe to the land in controversy, in trust for the general purpose of the will, and that the defendant has no right, title or interest in or to the land as land, hut that it has the right to have the land sold and is entitled to the proceeds thereof when sold. In this connection it should be said that plaintiffs ’ legal title doеs not carry with it a right to the rents and profits that have accrued since the death of the life tenant. In view of the equitable conversion of the land the rents and profits have the character of personalty, and are to be distributed as such by the executor. [Greenland v. Waddil,
The judgment nisi is reversed and the cause remanded with directions to the circuit court to enter judgment in conformity with the views herein expressed.