executor to sell real estate and apply the proceeds to certain specified purposes the executor will take a power, only, but if there is a devise to the executor to sell and apply the proceeds as directed he will take an estate in the land. (West v. Fitz, 109 Ill. 425.) It is not necessary, in order that the executor may take the fee, that the legal estate should be in terms devised to him. He will take that quantity of interest by the will which the purposes of his trust require, and if it is necessary that he should have the fee to enable him to execute the trust, it will be held to have been devised to him by implication. (Ebey v. Adams, 135 Ill. 8o.) If an executor is required to lease real estate and collect and pay over rents for a term of years or for the life of a beneficiary, he will take an estate in the land for years or life, as the case may be, and if at the expiration of such term he is to sell and convey the land, his estate will be a fee. Accordingly, in Olcott v. Tope, 213 Ill. 124, where the executor was to collect the rents of the testator's farm and at the expiration of the term for which the farm was leased to either lease it again or sell it, according to his judgment, it was decided that the executor took the fee. The rule that the estate of a trustee in real estate is commensurate with the powers conferred by the trust and the purposes to be effected by it was applied, and it was held that the executor being authorized to sell or lease, at his discretion, was vested with the fee for the purposes of the trust. In Kemmerer v. Kemmerer, 233 Ill. 327, the testator appointed his wife executrix and provided that land was to be rented and land sold to produce a fund. The court stated and applied the same doctrine, that where a person is named in a will to carry out its provisions and he cannot carry them out unless he holds the legal title, he will be held, by implication, to hold such title. In Fenton v. Hall, 235 Ill. 552, the executor was directed to reduce and convert into cash all the property of the testator, both real and personal, to sell the same at public or private sale,

in his discretion, and upon such terms as in his judgment he might deem best for the estate, to complete the collections, sale and distribution within a period of five years, and to collect and account for all interest and endeavor to keep all money at interest until finally paid out. He was given general charge and management of the estate to the same extent as an owner, and the right of certain heirs-atlaw to shares of the farm land and the rents and profits of the same was denied, on the ground that the authority given to the executor amounted, by implication, to a devise of the real estate to him. In these cases the intent of the testator was to place his executor practically in the position of an owner. There may be a direct and specific devise to an executor where he is not required to perform any duty respecting the estate and another is to have the rents and profits. In such case the executor will take no legal estate but it will pass to the beneficiary and he will be a mere devisee to uses. That was the conclusion in Drake v. Steele, 242 Ill. 301, where the will provided that the entire estate, after payment of items therein mentioned, should be held by the executor in trust for the maintenance of the widow and children of the testator, and at the death or on the remarriage of the widow the estate was to be divided equally among the four children, and it was held that the executor took only a power of sale. Kirkland v. Cox, 94 Ill. 400, was a case where there was a devise to the trustees of the testator's estate under an active trust and to sell the real estate and dispose of the proceeds in accordance with the will, and it was held that the trustees took the fee, which would seem to be a necessary conclusion.

Some cases are cited where there was a conveyance to trustees, as in Preachers' Aid Society v. England, 106 Ill. 125, where the conveyance was to a trustee in trust to convey the real estate to a certain society when it should be organized and put upon a working footing, and Lawrence v. Lawrence, 181 Ill. 248, where the conveyance was under

an active trust, and the court said that the trustee acquired whatever estate, even to a fee simple, was needed to enable him to accomplish the purposes of the trust. In cases where there has been a mere direction to an executor to sell and convey real estate, and nothing further, it has been held that he had nothing but a naked power. In Lambert v. Harvey, 100 Ill. 338, no division of the estate was to take place until after the death of the widow, when the property, both real and personal, of the testator was to be sold, and it was held that the will did not specifically or by necessary implication give the fee to the executrix, although it was said that such would be the effect where an executor is required to perform duties with respect to the real estate which could only be performed by one clothed with the legal title. Smith v. Hunter, 241 Ill. 514, was a suit for specific performance, and the question was whether there was a substantial defect in the title of the vendor. The will provided that the husband of the testatrix should have the use of the real estate during his life and upon his death it should be sold by her executor and the proceeds distributed as therein directed. There was neither a devise to the executor nor a right to possession, income or management, but a naked power of sale.

In this case the executor was merely authorized to sell and convey the real estate of William Lines and to make distribution according to the terms of the will and had no right to the land or the possession or the rents and profits. Having no title to the land he could not file a bill to correct mistakes in deeds or to set aside or cancel the conveyances. The necessary parties were not before the court and no decree that the court could enter would bar their rights, but the court heard the evidence and dismissed the bill for want of equity. If the question had been raised in the circuit court an amendment might have been made substituting a proper party as complainant. That was done in Teutonia Life Ins. Co. v. Mueller, 77 Ill. 22, where an

administrator brought a suit on a policy of insurance, and it appearing that he had no right to maintain the suit, the widow and heirs were substituted as plaintiffs. It is not a proper practice to dismiss a bill in chancery for want of proper parties without giving an opportunity to amend, (Heinroth v. Kochersperger, 173 Ill. 205,) and in this case the complainant was not even advised by the decision of the court that he was not a proper party complainant. He introduced evidence tending to prove the allegations of the bill, and whatever the proper conclusion might be upon a hearing with proper parties, we regard the case as one where an amendment ought to be allowed.

The decree is reversed and the cause is remanded to the circuit court, with directions to permit an amendment by substituting a proper party or parties complainant, and if such amendment shall not be made within a time limited by the court, then to dismiss the bill at the cost of the complainant, to be paid in due course of administration.

Reversed and remanded, with directions.

ANNIE KUEILE, Defendant in Error, vs. NICHOLAS ZIMMER et al. Plaintiffs in Error.

Opinion filed April 19, 1911.

1. WILLS-the punctuation or paragraphing of a will does not ordinarily control its meaning. The punctuation or paragraphing of a will will not ordinarily be permitted to control its meaning, but every part of the will must be considered in relation to every other part.

tate.

2. SAME when residuary clause is not limited to personal esA residuary clause will not be limited to personal estate even though a prior clause, considered by itself, may devise a fee simple in the real estate, where it appears from a consideration of the entire will that a life estate, only, was intended to be devised in both real and personal property.

3. SAME-fact that clause uses words "rents" and "estate" indicates an intention to include real estate. A clause in a joint will giving all the personal property to the survivor, "who also shall have the entire benefit of all incomes, rents, interests, etc., of the estate left to said survivor to be used by him or her as the case may be free and undisturbed during his or her natural life," refers both to real and personal property and limits to a life estate a prior devise of the real estate to such survivor.

WRIT OF ERROR to the Superior Court of Cook county; the Hon. GEORGE A. DUPUY, Judge, presiding.

SAMUEL J. LUMBARD, for plaintiffs in error.

M. B. WALTZ, for defendant in error.

Mr. JUSTICE DUNN delivered the opinion of the court: Elizabeth Zimmer died on January 8, 1889, leaving a will, which was admitted to probate on May 31, 1904, on the petition of Nicholas Zimmer, her husband. The plaintiffs in error, who assign error, are her heirs, being collateral relatives. The will, omitting the clause nominating the executor and the attestation clause, is as follows:

"We, Elizabeth Zimmer and Nicholas Zimmer, both of over full age and of sound disposing mind and memory, do in anticipation of our deaths, hereby make, and by these presents do declare this to be our last will and testament in words and figures following, to-wit:

"Ist. We do hereby order that all of just debts and funeral expenses, and all costs and expenses incident and accruing out of the settlement and administration upon our estate shall be first duly paid and satisfied.

"2nd. After the payment of all of our just debts and other expenses as stated above, we give, devise and bequeath to each other or to whomsoever of us that may be the survivor. That certain lot, piece or parcel of land known and described as follows, to-wit: Lot number twenty-four (24) in block thirteen (13) of Newberry's ad