5 Whart. 44 | Pa. | 1839
The opinion of the Court was delivered by
The first question which has been argued in this case is, the proper construction and effect to be given to the contract of July 10th, 1818, upon which the claim of the appellant to render the estate of William Tilghman liable, altogether depends. This point has been so carefully examined by the judges of the Circuit Court of the United States for this district, in the case of Tilghman and Wife v. Tilghman’s Executors, reported 1 Baldw. 464, that it is unnecessary to do more than refer to the reasons there given, as we concur entirely in the opinions delivered by the judges, that this contract was not an obligation on the part of of William Tilghman to pay the portion of thirty thousand dollars,,out of his own estate, at all events, but an arrangement, to raise it out of his daughter’s real estate, of which he was tenant by the curtesy, by a sale to be made after she should arrive at the age of twenty-one ; and as this arrangement failed to take effect in consequence of her decease shortly after that period, without any act or default of William Tilghman, but by events that were unavoidable, the provision was, so far as it was not in part executed, defeated.
The question is, how this money in the hands of William Tilgh-man at the time of his death, is to be considered, whether as personal or real estate. If the former, it passed to B. Chew, Jr., in right of his late wife, who died before her father, William Tilghman ; but, if it is real estate, then it is claimed by the heirs of Wm. Tilghman’s former wife, her daughter and grandchild having both, died before Wm. Tilghman, and his estate by the curtesy having prevented the claim of B. Chew, Jr., as tenant by the curtesy.
If sales by William Tilghman in the mode above-mentioned, were good, (and we must now take them to be so,) they could only be valid because they were made under the power conferred by the act of assembly. Without such an act, Wm. Tilghma.n could have conveyed no more than bis life-estate; and at his decease, as events
Then the case is, that in a conveyance a power is given to sell real estate, and raise a sum of money by passing the fee, but the conveyance is silent as to the nature or disposition of a part of that money. Is that money personalty, or does it still partake of the nature of real estate 1 In the conversion of real estate into personalty by will, the rule is well settled, that if executors be empowered by will to sell real estate for cértain purposes, such for instance, for the payment of debts,- or raising portions; and the sale is made, but a surplus remains undisposed of; whether that is occasioned by the silence of the testator, or by lapse, or other cause of inefficiency in the will, the heir at law takes the residue as ’ he would have taken the real estate. Leigh & Dalz. on Conversion, 92, and cases. So here, if the act of assembly empowers the tenant for life to sell a fee simple, reserving a ground-rent-for part of the consideration and receiving a gross sum for the surplus; and from silence on the part .of the legislature who create the power, no disposition is made of such sum; it continues real estate under the same limitations and restrictions as it before possessed, until it is subsequently impressed with the character of personalty by the owner; and that owner must be either one holding the absolute title in fee, or all the persons holding the different estates composing-the fee. There is
Mere possession of the fund in money by William Tilghman, as trustee for those entitled after his death, did not change its character; it was still real estate. If money which has been impressed with the character of realty, is in the hands of a trustee, not placed out by him, but remaining in covenant, the wife dying in the lifetime of the trustee, the heir takes it, and not the administrator of the wife. 1 P. Wms. 172.
This disposition of the fund seems to me in the present case reasonable and just, and such as the legislature, if its intention had been expressed in the case, would have enacted. For then the gross sum, which is part of the price of the land, goes exactly as the ground-rents go, which constitute the other part of the price ; that is, in lieu of the land and as a substitute for it. And if the power to stipulate for this gross sum exists, it is because it was more convenient to sell in that way than for a higher ground-rent. This is a circumstance which ought not to change the nature and character of the price, or make one portion of it real, and the other portion personal, — one to pass in one line of descent and the other in another and different line of descent.
We think the Orphans’ Court had jurisdiction over this fund, being the proceeds of sale of the real estate paid into Court, under the 19th section of the act of 24th February, 1834.
Decree accordingly.
The following decree was entered in this case:—
The decree of the Court below is confirmed so far as respects the claim of Benjamin Chew, Jr., to be a creditor of the said estate for the sum of $27,500, with interest, or any part thereof.
And also, so far as respects the claim of said Benjamin Chew, Jr. as to the sum of $7,500 or any part thereof, being the proceeds of certain real estate claimed as belonging to the daughter of William Tilghman, Esq., (subject to his curtesy,) sold by the said William Tilghman, Esq., during his lifetime.
The Court is of opinion, that the proceeds of said real estate so sold remained impressed with the character of real estate, and as such, passed on the decease of said William Tilghman, to the heirs at law of Margaret Elizabeth Tilghman, his late wife; and a claim on their behalf to said proceeds having been presented to this Court on this appeal, the record is hereby remitted to the said Orphans’ Court, that the same may be examined and settled according to law.