47 Md. 433 | Md. | 1878
delivered the opinion of the Court.
By the will of Horatio Waters, he authorized and empowered his executrix to sell at public or private sale, as she might deem best, and without the previous order of the Orphans’ Court, all or so much and such parts of his
After the sale of the real estate by the executrix, the appellant recovered two judgments in the Circuit Court for Frederick County against Horatio Waters, one of the devisees under his father’s will; — the first at the May Term, 1869, for $650, and the other at the February Term, 1871, for $350. And the appellant filed the pre
Horatio Waters, in his answer, insists that the real estate was properly sold by his mother under the power conferred upon her by his father’s will, and that there was a complete conversion of the estate from realty into personalty; and he denies that the judgments created liens on the proceeds of the sale, either in the hands of his mother or of her executor. The executor Hardt, without admitting or denying the right asserted by the appellant, submits the matter to the judgment of the Court.
1. It is, in the first place, contended by the appellant, that the executrix exceeded her authority in making the sale; that she was only empowered to sell so much of the real estate as might be required for the payment of debts- and funeral expenses, and that the personal estate was deficient for these purposes only about $15, and that this small deficiency did not justify the sale of real estate to the value of $1450. Upon the principle that where a sale is rendered unnecessary by reason of a total failure of the purposes for which the conversion was directed or authorized, or where a sale is unnecessarily made by an executor or trustee, the rights of the parties entitled to the real estate as such remain unvaried, it is contended that the devisee' Horatio Waters retains his right in the proceeds of the sale made by his mother as real estate; (Chitty vs. Parker, 2 Ves. Jr., 271; Smith vs. Claxton, 4 Madd., 484*; Davenport vs. Coltman, 12 Sim., 610;) and therefore the judgments created a lien as if no sale had been made.
It is certainly true, that the conversion of real into personal property, or personal into real, Under a power in a
2. Then, the next question is, when, and at what point of time, did the surplus proceeds of sale in this case take the nature and character of personalty ? or, in other words, from what time is the conversion to be considered as complete? And upon this question the authorities are clear, and without conflict; and they hold, that where the land is properly sold by the trustee or’ executor, and there is only a partial disposition of the proceeds of sale in fulfilment of the objects for which the sale was made, there the surplus belongs to the heir, or devisee, as the case may be, as money, and not as real estate; arid such surplus, according to the English cases, if not otherwise disposed of, will go to the personal representatives of the heir or devisee, even though the land may not have been sold during his ■ life-time. Flanagan vs. Flanagan, supra; Hewitt vs. Wright, 1 Bro. C. C., 86, 90; Wright vs. Wright, 16 Ves., 188, 193; Smith vs. Claxton, 4 Madd., 484; Dixon vs. Dawson, 2 Sim. & St., 327; 1 Lead. Cas. Eq., (3rd Ed.,) 821; From the time of the conversion in fact, the devisee’s right to the surplus money became vested, subject to the life estáte of the mother, and from that time it assuméd the character of personalty ; and, in the events that have happened, upon the death of the devisee, it would go. to his personal representatives. See Grider vs. McClay, 11 Sergt. & R., 224, and Pennell’s Appeal, 8 Harris, 515.
Such [.then being the right of. the devisee, Horatio ’Waters;; in the surplus-fund produced by the sale of the real estate devised, it is clear that no lien was created thereon, by th& judgments-against the devisee rendered after the sale. The judgment creditor has no equity or right to claim that the fund .shall be considered as realty, when it is owned and held by the judgment debtor only as personalty. And having no lien.attached to the fund, the
And as to the petition of the children of Cyrus Waters, deceased, to be made defendants in the case, that abides the fate of the bill of the appellant. No rights that they may have, as against the original defendants to the bill, are in any manner affected by the decree from which the present appeal is taken.
Decree affirmed.