234 Pa. 550 | Pa. | 1912
Opinion by
The bill in this case prayed for partition of the real estate of William Dunshee who died on March 5, 1905, having by his will given his entire estate to his wife for life, and directed that after the payment of certin pecuniary legacies, the balance of his estate should be divided among his children. He also directed that in distributing his estate, any indebtedness from any of his children to him should be deducted from their shares, and that any debt due by him on account of endorsements for Duquesne Tube Works, should be charged against his son William A. Dunshee. He further provided, “My executors may sell my real estate and make deeds to the purchasers or divide the whole or what remains after this between my heirs.” By a codicil the testator fixed the amount of the indebtedness of William A. Dunshee
An answer to this bill was filed by William A. Dunshee, in which he denied that the court had jurisdiction to entertain the bill, on the ground that the real estate of testator had by the terms of his will been converted into personalty for purposes of distribution. He also denied the averments of the bill, as to the amount of his indebtedness to the estate. The court below held that there was no conversion, and that the questions raised by the answer as to the amount of respondent’s indebtedness to his father, could only be determined upon final distribution, and directed that a decree for partition be drawn. Exceptions were filed on behalf of William A. Dunshee to the findings of fact and conclusions of law, these exceptions were overruled, and a decree was entered awarding partition, and appointing a master to make such partition. From that decree this appeal was taken.
Admittedly, there is no positive direction to sell. The will says: “My executors may sell my real estate.” A direction to the executor to make division of the estate does not take away the right to demand partition: See Carter’s Estate, 225 Pa. 355, and the cases there cited. Nor does it appear here that there is any absolute necessity for the executors to sell in order to carry out the provisions of the will. The bill shows, and the answer
We agree with the conclusion of the court below, that there was no conversion, and that the complainants were entitled to partition. As to the indebtedness of appellant, to the estate of his father, two questions are raised; (1) That the testator, his father, through inadvertence failed to give appellent credit for the sum of $10,786.76 to which he was entitled, as shown by his father’s own account; and (2) that appellant is entitled to credit for more than was allowed him by his father, as the proceeds of the sale of the Gas Company Stock, as directed in the second codicil of the will. The court below did not pass upon these questions, but held that if it could determine them at all, it could only do so upon the final distribution, and further, that these matters could not affect the rights of the other devisees to have their shares of the land set apart to them in sever
To the extent made necessary by this requirement, the decree of the court below is modified, and the record is remitted with a procedendo.