#### George Davis et al. *v.*John W. Corwine and William N. McGuire, Executors oF Keziah Davis.

1. The heirs of an intestate can not, even after settlement by the administrator, and where there are no outstanding debts, maintain an action in their own names to recover possession of assets belonging to the estate, or to compel the executors of a party who had a life interest in such assets, and has wrongfully disposed of them by will, to account for the same.

2. The will of a testator, after directing the payment of his debts, funeral expenses, and costs of administration, provided as follows: “The residue of my estate and property ... I give and devise and dispose thereof as follows I give devise and bequeath unto my beloved wife Oaziah Davis all my personal property and real estate wheresoever situated of which I shall be seized and possessed or to which I *669shall he entitled at the time of my decease to have and to hold the same* unto her the said Caziah Davis and to her use for and during her natural life.” The will then disposed of the remainders, in most or all' of the several parcels of real estate, to different persons, and gave to the wife power to dispose of the remainders in all other parcels thereof; hut the will was silent as to any further disposition of the personal estate, or any remainder or reversion *therein*— Held, that the wife took, an absolute ownership, and not a life interest merely, in the personal estate.

Motion for leave to file a petition, in error to reverse the-judgment of the District Court of Pike county.

James Davis died testate, in 1854, leaving a large estate,, both real'and personal. By *item*first of his will, he provides as follows:

. “ My will is first that my funeral charges and just debts-shall be paid by my executors hereinafter named. The residue of my estate and property which shall not be required for the payment of my just debts and funeral charges and, the expenses attending the execution of this my will and. the administration of my estate I give and devise and dispose thereof as follows I give devise and bequeath unto-my beloved wife Caziah Davis all my personal property and real estate wheresoever situated of which I shall he seized and possessed or to which I shall be entitled at the-time of my decease to have and to hold the same unto her-the said Caziah Davis and to her use for and during her natural life.”

By the second, third, fourth, fifth, and sixth *items*of the-will, the testator devises to different persons the remainders-in fee, after the death of his wife, in several specified parcels - of the real estate, and then by *item*seven provides as follows r.

“ My will is further that all the rest and residue of my' real estate shall he disposed of by my wife Caziah as she • may think proper if she should outlive me if not then it* shall go to my heirs generally.”

The will makes no farther disposition of the personal, estate, and is utterly silent as to any reversion or remainder therein.

*670The wife survived the testator, and elected to take under will; and having taken possession of the personal estate, ■and used and enjoyed it during her life, at her death she ■disposed of the same by will; and the case here sought to be reviewed was an action brought by the heirs at law of the testator, the plaintiffs in error, against the defendants in error, who are executors of Keziah Davis, deceased, to ■compel them to account for this personal estate.

The case was heard in the Common Pleas upon demurrer to the petition, which set forth substantially the facts aforesaid, and resulted in a judgment of the court sustaining the demurrer, and dismissing the petition. On appeal to the District Court a like judgment was rendered, and the object of the present motion is to reverse both these judgments.

*W. A. Hutchins*and *J. W.*Bannon, for the motion:

This suit is maintainable upon the ground that it is a suit in equity. The property which the defendants now hold under the will of Keziah Davis was, in her hands, trust property, and plaintiffs call for an account, etc.

Courts of equity exercise concurrent jurisdiction with all ■other courts, in all matters relating to trusts, where an .account and the execution of a trust is prayed for. 1 Story’s Equity, 593; 6 Ohio, 119; Ib. 430; *Stiver*v. *Stiver,*8 Ohio, 217.

This personal property has already been the subject of administration by the administrator of the testator, who accounted for it as having been turned over by him to Keziah Davis as directed by the will; and when she took it, she took it solely under the will. Nothing remains to be done, so far as the estate of the testator is concerned, and it is well settled in Ohio that where there are no debts to be paid or adjusted, and administration would be dilatory and expensive, equity has ample jurisdiction to enforce trusts. *Taylor*v. *Huber,*13 Ohio St. 288; 23 Ohio St. 198.

This mode of enforcing the plaintiffs’ claim is within the .spirit and purpose of the code.

II. "Whatever estate Keziah Davis took in the personal *671property disposed of by the will of James Davis is to be determined by a construction of the will.

The limitation as to all his personal property and real ■estate is “to her” . . “for her use for and during her natural life.”

The intention of the testator was simply to do what he, in unequivocal language, expressed in his will.

The clause of the will, “ the residue of my estate and property I dispose of as follows,” can not do away with or control the language that follows, “ to her use for and during her natural life.”

Having referred to his personal property, the presumption of law that he did not intend to die intestate as to that property, does not apply to this case; for the rule only applies in construing a will, the language of which is of equivocal or doubtful import. *Gilpin v. Williams,*17 Ohio St. 412. There is no equivocal or doubtful language in the portions of the will referred to.

The rule is well settled that theheir can not he disinherited hut by express word or words of necessary implication. 1 Jarman, 441, 445, 465 ; 1 Ohio St. 283.

This was not intestate property as to Keziah Davis. The testator devised to her a life estate in the whole thereof.

The testator coupled the personal, property with the real estate all in the same sentence, and then limited the whole to a life use.

The words, “ wheresoever situated, of which I shall he seized and possessed, or to which I shall he entitled,” apply as well to the personal property as to the real estate.

The word “ possessed ” evidently was intended to relate to the personalty, because by construing the word as applying exclusively to the real estate, the devise would only relate to such as he was both “ seized and possessed ” of, which evidently was not the intention.

If the testator had intended to give the personal property to the widow absolutely, there could have been no object in connecting it with the real estate and the words creating a life use. To first say she should have a life use, and mean *672by that that she should take the full ownership, is folly. And having first expressly limited both the personal and real estate to a life use in the same sentence, and then subsequently taking up the subject again and singling out the real estate, and leaving the personalty as it stood before, shows he so intended it.

*B. P. Banney,*contra:

I. The action can not be maintained by the present plaintiffs. Upon the death of a man, all rights to his personal estate vest in his personal representative, and he alone can sue for and recover it, and convert it into money. 4 Ohio St. 360; 4 Paige, 47; 4 Sand. Ch. 31; 2 McCloud Ch. 168; 5 Mon. 574; 7 Ib. 215.

II. All the personal property claimed in the action, was given to Mrs. Davis by the will absolutely.

The testator must be presumed to have intended all that, his language naturally imports, and this will should be read keeping constantly in view at least the following rules:

1. The whole will, and all that it contains, must be considered in construing every part of it, and such a construction must be adopted, if possible, as will give effect to all that is said in it.

2. As a necessary consequence of this rule, no sensible language used in the will can be rejected, restrained, or perverted, unless other language found in other parts of the will requires it, to make the whole consistent and effectual to carry out the plain intention of the testator. And as no-language can be rejected, so no construction is allowable which makes it useless, as that would be equivalent to rejecting it.

3. “ It is a settled rule of construction, that a testator is never presumed to intend to die intestate as to any part of his estate to which his attention seems to have been directed ; and a court of equity will put such a construction upon equivalent words as to prevent such a result.” *Collier v.*Collier, 3 Ohio St. 373.

The only language in the whole will expressly referring *673to his personal property, is found in the second clause, and is as follows: “ I give, devise, and bequeath unto my beloved wife, Keziah Davis, all my personal property.” These words are sufficiently comprehensive, clear, and explicit to invest her with a full title to the whole of it, unless restrained by what follows.

¥e insist that they are not so restrained. It is neither the natural nor necessary application of the language following this absolute disposition. All the words are fully satisfied when applied to the' real estate; and the claim that they are so restrained, is in violation of the rules of construction before cited, and therefore inadmissible.

*First.*The real and personal estate are not blended in the disposition made of each. It is not called his personal and real estate, as the natural and usual expression would be, if he intended to blend them and subject both to the same limitation; and the words of limitation at the end of the clause are only such as technically and properly belong to the real estate.

*Second.*But if doubt exist upon this clause of the will, the rules above stated require us to go to other parts of the will to solve it. Indeed, when the three clauses which stand consecutively in the will are read together, they contain the plain, sensible, and consistent statement of the testator, that by the will he disposes of all his property, whether real or personal; that he does it by giving to his wife all his personal property, and a life estate in all his real property ; and that having thus disposed of everything except the remainder in his real estate, he proceeds to do that. Any other construction would be contrary to the presumption of law, which equally disposes of this question, and shows that he did not intend to die intestate as to any part of his estate.

Welch, J.

We agree with the courts below, and think there are two several grounds on which their judgments must be sustained.

*674In the first place the action is not brought by the proper parties. If this is intestate property, it belongs to the personal estate of the testator, and any action to recover it or its value must be brought by his executors or administrators, and not by his heirs. This doctrine is too well settled to need any citation of authorities. The case of *Taylor and wife*v. *Ex’rs of Huber,*13 Ohio St. 288, relied upon by counsel, is not in contravention of this doctrine. The distinguishing feature of that case was, that there was a *trust*created by the will under which the property was claimed. Such is not the case here. The plaintiffs claimed the property here on the ground that it was not disposed of by the will.

But we think, in the second place, that by the terms of this will the widow took an absolute estate, and not a mere life interest in the personal property, and that her executors are not liable to account therefor, either to the heirs or personal representatives of the testator. We are controlled in giving this construction to the will mainly by the fact that the testator assumes to dispose of his entire estate. He makes a disposition of enough of his estate to pay debts, funeral expenses, and costs of administration, and then declares that he gives, devises, and disposes of the “ *residue*of his estate and property as follows.” Unless the wife took an absolute property in the personal estate, the testator utterly failed to do what he professed and intended to do. And this could hardly have happened from mere forgetfulness or inadvertence; for, in the subsequent parts of the will, he makes particular and detailed dispositions of the remainders in the real estate, but makes no mention of any remainder, or other interest in expectancy, in the personal property. If he had considered the real and personal estate as standing in the same category, only a life estate in either having been disposed of, it is hardly conceivable that he should have disposed of the remainder in one and left the other to descend.

It is true that the devise of the real estate and the-bequest of the personalty to the wife are contained in a single sen*675tence of the will, and that the sentence concludes with words limiting her estate to the term of her natural life. If the will contained no other provision reflecting on the meaning of this single provision, it would be quite plain that the intention was to give the wife only a life estate in the personal property. But the will must be read as a whole, and effect must be given to all its provisions in order rightly to understand either or any of them. This is a rule universally admitted. Another rule applicable to the interpretation of wills is that the testator will not be presumed to have intended to leave any of his estate undisposed of. Here we have a ease, not only where the latter rule is applicable, but where the testator has declared that he had no such intention. It will be observed that there are do punctuations in the text of the will. We think, taking the provisions all together, that the intention was to make the clause, in which the testator says, “ I give and bequeath unto my beloved wife all my personal property,” complete within itself, and to make the limitation to life, with which the sentence concludes, applicable to the real estate alone. No other construction will reconcile apparently conflicting clauses in the will, and give effect to all its provisions.

Another question raised and argued in the case is, whether, if the wife took only a life estate in this property by the will, she did not inherit the reversion in it as heir of the testator? This question it is, of course, unnecessary now to consider.

*Motion overruled.*

McIlvaine, C. J., White, Rex, and Gilmore, JJ., concurred.