Padley v. Jones

4 Ohio Law. Abs. 503

• Court: Ohio Court of Appeals
• Decided: November 1, 1924
• Status: Published

Opinion

PARDEE, P. J.

The original action was brought in the Lo-rain Common Pleas upon an action in partition upon real estate, owned by Sarah Ann Bache since deceased.

The testatrix left a will whereby she left her property both personal and real to seven beneficiaries with the following provision; that the executor could sell at his discretion her property both personal and real without order of court and divide it equally.

Jones et contends that by the express words of the will the testatrix meant all her real property to be reduced to personal before division and therefore partition does not lie.

Padley contends that the words of the will did not amount to a conversion of the property — that his right to constitute partition proceedings is concurrent with the executors.

The Court of Appeals held:

1. There are three ways that a conversion may be worked. 1. A positive direction to sell; 2. An absolute necessity to sell in order to execute the will; 3. Such a blending of testators estate in his will as to clearly show that he intended to create a fund of money.

2. From the provisions of the will none of these elements are present and for these reasons the estate may be partitioned.

Decree accordingly.