Schaupp v. Jones

Hamilton Circuit Court

Schaupp v. Jones

13 Ohio C.C. Dec. 649, 3 Ohio C.C. (n.s.) 176

DecidedJuly 1, 1902

StatusPublished

This text of 13 Ohio C.C. Dec. 649 (Schaupp v. Jones) is published on Counsel Stack Legal Research, covering Hamilton Circuit Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Schaupp v. Jones, 13 Ohio C.C. Dec. 649, 3 Ohio C.C. (n.s.) 176 (Ohio Super. Ct. 1902).

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Opinion

GIFFEN, J.

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 [651]*651the 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 persons 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.

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GIFFEN, J.

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 [651]*651the 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 persons 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.

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Bluebook (online)

13 Ohio C.C. Dec. 649, 3 Ohio C.C. (n.s.) 176, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schaupp-v-jones-ohcircthamilton-1902.