French v. Mastin , 1885 Mo. App. LEXIS 279 ( 1885 )

Hall, J.

If the intention of the testator was such as the plaintiffs contend it was, the will does not express it. The will provides that “ before any division of funds shall he made hy my executors,” etc. This, no doubt, does create a charge upon the funds coming into the hands of the executors ; but we cannot perceive how it makes any charge upon real estate which does not come into the possession of, and under the control of the executors. The land having been divided in kind among the devisees, as provided by the will, the executors had no power, whatever, over it. That sectionof the will, by which a charge is created, provides for the payment of the charge by the executors, before a division by them, out of the amount going from them to Thomas H. Mastin, trustee. We cannot say that by said section a charge was fixed upon the real estate received by said Thomas H. Mastin, trustee, not from the executors.

The judgment of the circuit court is affirmed.

All concur.