Lansdown v. Kierns. cemented, as shown by the plaintiff's evidence. But we do not think, however, this was sufficient to justify us in holding the contract was not substantially performed. In Porter v. Paving Co., 214 Mo. 1. c. 22, we said: "Neither would the fact, which the evidence for the plaintiff tended to show, that in some instances the joints of the pipe were not cemented in a workmanlike manner and that some of the manholes were not plastered properly, entitled plaintiff to a cancellation of the tax bills," and we held the contract was substantially complied with. IV. But it is said that the ordinance establishing the sewer district was void because the lots were twice as deep on the north side as on the south side of West Main Street and the statute required the cost Area Rule. of the sewer to be apportioned in accordance with the area rule, and thus the owners of lots on the north side were taxed twice as much as on the south side of said street. That this was grossly unequal special taxation, contrary to the Fourteenth Amendment. This court has often held that the area rule for assessing special taxes for building sewers is not obnoxious to the Fourteenth Amendment. [McGhee v. Walsh, 249 Mo. 1. c. 283, and many other cases cited by appellants' counsel.] But it is said that the Supreme Court of the United States has decided in the case of Gast Realty & Inv. Co. v. Schneider Granite Co., 240 U. S. 55, that: 'An ordinance of St. Louis authorized by the charter of that city, based on area, without providing for equal depth of the assessment district, results necessarily, and not merely incidentally, in subjecting owners of property having greater depth than that adjoining them to greater and disproportionate taxation and is unconstitutional under the Fourteenth Amendment." But that case is to be distinguished from this case. In that case the charter itself provided for fixing the benefit district arbitrarily, and the ordinance followed the literal terms of the charter by reason of which the only private prop Lansdown v. Kierns. erty in the benefit district and taxed on one side of the street was very close to it and on the other side it extended for half a mile from it. Besides, that was a street paving case. In the case before us this sewer district was established and fixed by the judgment and discretion of the city council with reference to the special benefit to be received by the particular parcels of land included within the benefit district. But in the Gast Case, as was said by this court in Wetterau v. Farmers & Merchants Trust Co., 285 Mo. 555, the benefit district was established "not because of special considerations applicable to the parcels taxed, but in blind obedience to a rule [of the charter] that requires the result." The same observation was made in Trust Co. v. Blakely, 274 Mo. 52. In the Gast Case the city council exercised no judgment whatever in determining the property which it deemed benefited by the proposed improvement, but in this case it did exercise its judgment and determine that the lots on the north side of Main Street, which were twice as large as those on the south side, should be included in the district, although under the law they would be taxed under the area rule twice as much as those on the south side. No injustice was necessarily done any of the property owners, as in the Gast Case. If all the property on the north side and all the property on the south side of Main Street was on or above grade and could have been drained by the sewer, no complaint of unequal taxation could have been made by the application of the area rule. The evidence does not satisfactorily show the relative areas of the lots on each side of the street which could be drained by the sewer. It may be that much more of the lots in area on the north side could be drained by it than on the south side. The law committed the decision of this question and the justice and expediency of said district to the city council, and in the absence of fraud or collusion, of which there is neither allegation nor proof, the ordinance establishing such sewer district is conclusive and cannot be assailed. [McMurry v. Kansas City, 283 Wyatt v. Stillman Institute. Mo. 479; McGhee v. Walsh, 249 Mo. 283; Johnson v. Duer, 115 Mo. 1. c. 376; Shumate v. Heman, 181 U. S. 402.] The result is, the judgment appealed from is reversed and the cause is remanded to the circuit court with directions to enter judgment against the plaintiff and dismiss his petition. Lindsay, C., concurs. PER CURIAM:-The foregoing opinion by SMALL, C., is adopted as the opinion of the court. All of the judges concur, except Woodson, J., not sitting. SADIE WYATT et al., Appellants, v. STILLMAN INSTITUTE. Division One, March 7, 1924. 1. WILL: Realty: Interruption of Descent: General Intention. The law, without volition on the part of the ancestor, casts the real estate of which he may die seized upon the heir, and it is only by some clear act of his, usually by will, that this devolution will be interrupted or interfered with; and if a change in the devolution provided by law is not clearly expressed, it must result irresistibly and imperatively from the general intention of the instrument, whether it be will or deed. 2. : -: Converted into Money. A will devising all of testator's property, real and personal, to his wife during her natural life, and instructing and empowering his executor, upon her death, to sell all said property, and "the proceeds thereof I direct to be given" to a certain school, was a devise of a life estate in the land to his wife, but to the school there was no devise of land, or of any interest in land, but a bequest of money, the land being merely the source from which the money was to be obtained. For the purposes of the will the lands were converted into money. 3. DEVISE: To Religious Corporation: Educational Institution: Real Estate. An incorporated institution organized, under a statute authorizing the formation of educational institutions, for the training of colored youths "in the various branches of academic, collegiate, industrial and theological studies," is not to be classed as a religious corporation under Section 8 of Article 2 of the Constitution, and is under no disability to hold title to real estate devised to it. Wyatt v. Stillman Institute. 4. WILL: Real Estate: Converted into Money: Election to Take Land: Rconvention: Inconsistency with Will. But where the will gave the testator's lands to his wife during her natural life, and empowered and directed the executor, at her death, to sell the land, and directed that he turn over the net proceeds to an unincorporated school "to be used by it in educating young colored men," and said institution was afterwards incorporated, said institution could not, after the death of the life tenant, elect to take the land, for no land was devised to it, but the land was by the will converted into money, and the gift was exclusively to a charitable use, and under the doctrine of re-conversion only those who have the exclusive beneficial interest in real estate constructively converted into money may elect to take it in its actual condition. Nor can the land be held and its rents and profits be merely applied to the use mentioned, for that would be inconsistent in an essential respect with the expressed purpose of the will, which imperatively directed that the lands be sold and the net proceeds be given to the institution. 5. 6. 7. : : Fee: Naked Power to Sell. Where the will gives to the executor only a naked power to sell land he does not take the fee by implication. The naked title in such case descends to the heirs, but the executor can sell the lands, and his deed divests the title out of the heirs and conveys the fee to the grantee. : : Power of Executor to Sell: Personal Trust: Discharge: Administration Pending. A will vesting a named executor with the naked power to sell estate lands does not create a personal trust, but the power adheres to the office of executor and must be exercised during the continuance of the executorship; and though the probate court, by its judgment, approved his settlement as and 'for a final settlement and discharged him as executor, if the estate had not then been fully administered and the land had not been sold and the proceeds paid to the legatee, as the will directed, the judgment was unauthorized and void, and the administration is still pending, and the named executor having died, that court, and that court alone, is authorized to fill the vacancy in the office of executor, by the appointment of a suitable person, upon the nomination of the legatee, where the will so provides, or an administrator de bonis non with the will annexed, in default of such nomination. : Fee: Sale Rents: Personal Property: Suit to Quiet Title. Where the will gave to testator's wife all his property during her natural life, and empowered and directed his executor, upon her death, to sell the lands, and gave the net proceeds to an educational institution, thereby converting the land into money, the testator's heirs took the naked legal title in fee in the real Wyatt v. Stillman Institute. estate, and the institution has no right, title or interest in the land as land, but, the wife being dead, does have the right to have the land sold by the executor, or, if he is deceased, by his successor duly appointed by the probate court; but the heirs' legal title to the real estate does not carry with it a right to the rents and profits that have accrued since the death of the widow, since they have the character of personalty and are to be distributed by the executor. Headnote 1: Descent and Distribution, 13 C. J. sec. 2. Headnote 2: Conversion, 13 C. J. sec. 34. Headnote 3: Religious Societies, 34 Cyc. 1151. Headnote 4: Conversion, 13 C. J. sec. 87. Headnotes 5 and 6; Executors and Administrators: 5, 24 C. J. sec. 595; 6, 23 C. J. secs. 258, 260, 264; 24 Cyc. secs. 610, 2735, 2736. Appeal from Dunklin Circuit Court. Hon. W. S. C. Walker, Judge. REVERSED AND REMANDED (with directions). Orren Wilson and McKay & Jones for appellants. (1) The court erred in finding that the plaintiffs herein had no title, interest or estate in the lands in controversy. Williams v. Lobban, 206 Mo. 411; Enueberg v. Carter, 98 Mo. 647; Coil v. Insurance Co., 169 App. 634; Brooks v. Roberts, 195 S. W. 1021; Deal v. Lee, 235 S. W. 1055; Dowd v. Bond, 199 S. W. 956; Barr v. Stone, 242 S. W. 664; Maynor v. Land & Timber Co., 236 Mo. 728; Riley v. O'Kelly, 250 Mo. 657; Toler v. Edwards, 249 Mo. 161; Charles v. White, 214 Mo. 211; Lantz v. Caraway, 50 L. R. A. (N. S.) 34; Waldemeyer v. Loebig, 183 Mo. 373. (2) The court erred in finding the feesimple title to the lands in controversy vested in H. B. Pankey, trustee, he not being a party to the action nor having entered his appearance therein. Brooks v. Roberts, 195 S. W. 1021; Deal v. Lee, 235 S. W. 1055; Dowd v. Bond, 199 S. W. 956; Barr v. Stone, 242 S. W. 664; Maynor v. Land & Timber Co., 236 Mo. 728; Riley v. O'Kelly, 250 Mo. 657; Toler v. Edwards, 249 Mo. 161; Charles v. White, 214 Mo. 211. (3) The court erred in ordering a sale of the premises in controversy, for the |