Appellant claims that the trial court erred in concluding that he was not permitted to use estate funds to cover expenses of managing the real property pending its sale. I agree.
R.C. 2113.52 provides that when a testator devises a parcel of real property to a beneficiary, the beneficiary takes the property subject to its encumbrances, *Page 722 such as tax liens and mortgages. This rule is premised upon the fact that at the moment the testator dies, the real property immediately passes to the beneficiary and the estate never possesses an interest in it. Thus, the beneficiary, if he or she wishes to retain the property, is responsible for any expenses associated with the management of the property.
Item V of Carpenter's will, however, does not devise any interest in her homestead to appellant as a beneficiary of her estate. The Supreme Court of Ohio encountered a similar testamentary disposition in Richey v. Johnson (1876), 30 Ohio St. 288. The will provided that the executors of the decedent's estate were to sell his farm after his wife's death and divide the proceeds equally between the decedent's siblings and their heirs. The court concluded this was not a devise of the real estate.
"The thing to be distributed was money, not land. * * * [T]hegift is therefore to be regarded as a bequest of personality, andnot as a devise of land. It makes no difference that the fund to be distributed is the proceeds of that which was land at the date of the will, or at the testator's death. The bequest is nevertheless a legacy * * *. A court of equity will regard the subject-matter as having the new character which the testator has impressed upon it by an unconditional order for its conversion. The courts of England uniformly act upon this doctrine, and the same rule obtains in most of the states of this country, and has been frequently recognized in this state." (Emphasis added.) Id. at 293.
Likewise, the direction to sell Carpenter's real estate and distribute the proceeds to appellant was a bequest of personality, the money, not a devise of the land itself. Appellant never obtained an interest in the property as a beneficiary of the will and, thus, was not required to utilize his own funds during the pendency of the sale to cover the mortgage or incidental expenses of its management. The probate court erred in concluding that he was.
Moreover, appellant was not required to obtain the probate court's approval before managing the real estate (i.e., paying the expenses from estate funds) pursuant to R.C. 2113.311 because the will specifically directed him, as executor, to sell the property. R.C. 2113.39; Bilikam v. Bilikam (1982), 2 Ohio App.3d 300,2 OBR 332, 441 N.E.2d 845; Ziechmann v. Adomaitis (Mar. 13, 1986), Cuyahoga App. No. 50264, unreported, 1986 WL 3227.
Thus, to the extent that the trial court has ordered reimbursement because appellant was not permitted to use estate funds to pay any of the expenses arising from the management of the property, the judgment should be reversed. Upon remand, the trial court should consider the propriety of the individual expenses as necessary to the management of the real estate.
*Page 723Based upon the foregoing analysis, I respectfully dissent.