#### Powers vs. Powers.

WroL — Tbtjst. Parties. (1) *Ohrn'ge on lands devised*— Devisee *a trustee.*(2) *Right of action of cestui gui trust.*(S) *Proper parties to such action.*

1. A will, after devising certain lands to E. P., added, “ And it is also understood tliat said E. P. is to pay or cause to be paid to O. P., within one year after my decease, tbe sum of $200.” *Held,*

(1). That this provision created a charge upon the lands devised, for the payment of the $200.

(2). That the devisee, having accepted the land under the will, held it *in trust*for O. P. to the extent of the $200, with interest from the time the same became payable; and the proper circuit court had jurisdiction to enforce such trust.

2. After the year limited in the will, an action will lie in favor of O. P. against the devisee, not only to have any unpaid balance of the $200 declared a lien upon the land, but to enforce such lien by a sale of the land or a part thereof; and there is no misjoinder of causes of action in a complaint demanding such relief.

3. In such action, the executor (or, in this case the co-executor with E. P.) need not be joined as a party defendant, his interest in the land being only contingent, and not such as to be affected by the litigation.

APPEAL from tbe Circuit Court for *Fond du Lac*Comity.

Tbe plaintiff, *Orlin W. Powers,*appealed from an order sustaining a demurrer of tbe defendant, *.Enos B. Powers,*to his complaint. Tbe grounds of complaint and demurrer are stated in tbe opinion.

*Gerrit T. Thorn*andN *S. Gilson,*for appellant,

argued that tbe legacy was an equitable charge on tbe land devised, although tbe devisee was executor or residuary legatee, tbe will not indicating a contrary intention *{Alcock v. Sparhawk,*2 Yern., 228; *Elliot v. Hancock,*id., 143; *Harris v.- Fly,*7 Paige, 421; *Podge v. Manning,*11 Paige, 334; *Sands v. Champlin,*1 Story, 376; *Bugbee v? Sargent,*23 Me., 269 ; *Luckett v. White,*10 Gill and J., 480 ; *Clyde v. Simpson,*4 Ohio St., 445 ; *Nellons v. Truax,*6 id., 97); that although tbe county court would have jurisdiction to compel tbe executors to pay a *general*legacy, with whose pay*660ment sucb executors are charged, that court has no jurisdiction of the present case, nor is Driggs, as one of the executors, a proper party thereto (R. S., ch. 94., sec. 85 ; ch: 97, secs. 88, 85 ; *Field’s Appeal,*86 Pa. St., 11; *Batchelder v.*Batchelder, 20 Wis., 453 ; *Saxon v. Barksdale,*4 Desaus., 522; 1 Story’s Eq. Jur., 602 ; 2 Roper on Legacies, 536); and that the averment that defendant holds the land devised to him, “ in his own exclusive right ” under the will, is sufficient, without any distinct averment that the estate has been settled, and defendant’s portion assigned him by the county court.

*Qillet, Pier & Bass,*for respondent.

[No brief.]

LyoN, J.

The complaint states that on or about the 20th day of April, 1868, Jonathan Powers, the father of the parties to this action, died testate; that his will was duly admitted to probate in the proper court, and the executors therein named, who were the defendant and one John J. Driggs, duly accepted the trust, qualified as such executors, and entered upon tbe duties as such; and that these proceedings were had May 18, 1868.

The complaint sets out the last will and testament of the testator in full, from which it appears that he devised specific parcels of land to each of his children, including these parties, restricting their power of alienating the same until after the expiration of ten years from the time of his decease. Following such devise to the defendant, and in the same item or paragraph of the will, is the following provision: “And it is also understood that the said *Enos R. Powers*is to pay or cause to be paid unto my said son, *Orlin W. Powers,*within one year after my decease, the sum of two hundred dollars lawful money of the United States.”

It is further alleged in the complaint, that the defendant has entered into the occupation and enjoyment of the lands thus devised to him, and holds the same in his exclusive right and for his sole use and benefit, by virtue of the devise thereof to him, *661and tbat be accepted tbe same witb tbe trusts annexed thereto, and subject to tbe liens and obligations imposed upon sucb lands by tbe will; and tbat tbe defendant bas refused and neglected to pay said two hundred dollars to tbe plaintiff, except tbat be paid fifty-seven dollars thereof about April 26,1869.

Tbe relief demanded is, tbat sucb unpaid balance be adjudged a lien on tbe premises so devised to tbe defendant, and tbat tbe premises, or a portion thereof, be sold, and tbe plaintiff be paid out of tbe proceeds of sucb sale; also general relief is demanded.

Tbe action was not commenced until after tbe expiration of more than two years from tbe death of tbe testator.

A demurrer to tbe complaint was interposed by tbe defendant, and tbe following grounds of demurrer were assigned:

“ 1st. Because it appears on tbe face thereof tbat tbe court bad no jurisdiction of tbe person of tbe defendant or tbe subject of action.

*“*2d. Tbat there is a defect of parties defendant in this, tbat John J. Briggs, mentioned in said complaint, is not joined as a party defendant in said action.

*“*3d. Tbat several causes of action have been improperly united.

“4th. Tbat tbe complaint does not state facts sufficient to constitute a cause of action.”

This demurrer was sustained by tbe circuit court, and tbe appeal is from tbe order sustaining tbe same.

Tbe order of tbe circuit court sustaining tbe demurrer is erroneous, and must be reversed.

I. Tbe provision of tbe will which required tbe defendant to pay tbe plaintiff two hundred dollars within one year after tbe death of tbe testator, creates a charge upon tbe lands devised to. the defendant, for tbe payment thereof. This proposition is abundantly supported by tbe authorities botn in this country and in England. 2 Jarman on Wills, 533; *Harris v.*Fly, 7 Paige, 421; *Clyde v. Simpson,*4 Ohio State R., *445; Field's Appeal,**66236 Pa. St (12 Casey) 11; *Nellons v. Truax,*6 Ohio St., 97; *Sands v. Champlin,*1 Story, 376; *Luckett v.*White, 10 Gill & J., 480.

II. The defendant therefore holds the lands so devised to him in trust for the plaintiff, to the *extent*of the unpaid portion of the two hundred dollars, and interest thereon from the time the same became payable by the terms of the will. This action being to enforce the execution of such trust, the circuit court has jurisdiction of it. 1 Story’s Eq. Jur., *sees. 595, 602.*

III. Driggs, co-executor with the defendant, is not a necces-sary party to the action. His interest as executor is only a contingent interest; is paramount to that of the parties; and is entirely unaffected by this litigation. This action may be likened to an action to foreclose a junior mortgage. In such case it is not necessary to make the prior mortgagee a party thereto.

IY. There is no improper joinder of actions. The objects of the action are to have the unpaid balance of the two hundred dollars, which, by the terms of the will, the defendant was directed to pay to the plaintiff, declared a lien and charge upon the lands devised to the defendant; and to enforce payment thereof by a sale of such lands and an application of the proceeds of the sale to the payment of such balance. These objects may well be accomplished in one action. The case of *Luckett*v. *White, supra,*is authority for the practice pursued in this case.

Indeed, we do not perceive how the plaintiff could have divided his action. Had he done so, it would be like the case of the owner of a mortgage who should bring one action to have his mortgage declared a lien upon the lands affected by it, and another action to obtain a sale of the mortgaged premises to satisfy his debt. Such practice would be too absurd to be tolerated.

Y. It necessarily follows from these views that the order sustaining the demurrer to the complaint must be reversed, and the cause remanded with directions to the circuit court to overrule such demurrer.

*By the Govrt.*— So ordered.