MCGILL, Ch.
On bill for construction of a will, brought by the executors of David M. Potter against Sarah K. Adriance and others.
Joseph Cross, for complainants.
MCGILL, Ch. The bill is filed for the construction of the will of David M. Potter, deceased. The will was made on the 5th day of December, 1872, and the testator died on the 3d day of February, 1879. The will directs that the testator's debts and funeral expenses shall be paid, and then gives the entire personal estate to his wife, in her own right, and provides that no account shall be rendered therefor. It proceeds as follows: "Item. I direct that all my real estate shall remain under the absolute control of my wife until my son Stephen S. Potter becomes of age, and I also direct that my wife shall have the use of the house and one-third of the proceeds of the farm until sold. Item. At any time after my son Stephen S. Potter attains the age of twenty-one years, and a majority of the heirs so directing, the real estate may be sold either by public or private sale, as a whole or in lots, and upon such terms as a majority of the heirs shall have decided upon. Item. Whenever the real estate, or any portion thereof, is sold, I direct that one-third of the proceeds of such sale be given to my wife in her own right, and the residue and remainder thereof to be equally divided among my children, William S. Potter, Charles H. Potter, Sarah Kate, wife of Edgar Adriance, Anna E. Potter, David M. Potter, and Stephen S. Potter, share and share alike. Lastly. I hereby appoint my beloved wife, Elizabeth Potter, and my son William S. Potter, my executors of this my last will and testament." The children mentioned in the will were all the children and heirs at law of the testator. Into directions given in the will. There the court held that the testator contemplated the bequest of a fund distributable by the executors, to be produced by the sale of his farm, and that the executors had power to sell the real estate. In the case under consideration the farm is to be sold, and the proceeds of sale are to be distributed, but the sale is not to take place till a majority of the testator's heirs, that is, his children, to whom the land would descend, shall determine upon its character and terms, and direct it. The executors are to perform the mere ministerial duties, that is, conduct the sale, and distribute the proceeds; while the children, who are to have the beneficial interest, except the interest of the wife, who was given a place in the transaction as executrix, were to exercise the discretion and judgment which would be required. By force of the word "directing," which imports an order to another, this case is stronger in favor of a power of sale in the executors than Rankin v. Rankin, supra.
I am of opinion that the executors will have the power to sell when a majority of the heirs, to whom the land has descended, shall exercise the discretion required of them by the will.