Evans's Appeal

| Pa. | Jan 3, 1870

The opinion of the court was delivered, January 3d 1870, by

Read, J. —

When the will in this case was before the.court (in 3 P. E. Smith 292) the bequest “ to be expended in the purchase of a lot and the erection of a college or university with library rooms, &c., together with my library and $6000 additional to be expended in the purchase of useful books for the library, and it is my wish that the said college be known as the Porter University or College,” was held to be a charitable use, and the will, having been made within one calendar month before the decease of the testator, to be void by the eleventh section of the Act of April 26th. 1865. There being no residuary legatee named in the will, all the property, excepting the devises and legacies to particular individuals, goes to the heirs or next of kin, according to law.

The power given to his executors to sell his real estate is in the most positive and direct terms, and converts it absolutely into personalty, according to all our authorities.

Judge Bell, in Willing v. Peters, 7 Barr 287, states the law on this subject very clearly. “Now,” says the learned judge, “by the well settled rule in equity, land or money directed to be converted by a last will or other instrument is impressed with the character of the particular species of property into which it is to be transmuted. Thus land ordered to be sold is regarded as money for every purpose necessary to effectuate the intent of the devisor or donor. The parties to whom the proceeds are to be paid, whether heirs at law or strangers, take no estate in the premises which are to be the subject of the sale, as has more than once been held by this court after the most solemn and deliberate consideration. Thus it has been decided that a judgment recovered against one of several legatees, among whom the fund when made was to be distributed, will not bind his interest therein, for he is seised of no estate in the land which can be made the subject of alien, and consequently, that a sheriff’s sale of the legatee’s supposed interest in the land passes nothing to the purchaser: Allison’s Executors v. Wilson’s Executors, 13 S. & R. 333; Morrow v. Brenizer, 2 Rawle 185" court="Pa." date_filed="1828-11-01" href="https://app.midpage.ai/document/morrow-ex-rel-isett-v-brenizer-6314384?utm_source=webapp" opinion_id="6314384">2 Rawle 185. The principles upon which these decisions are based are familiar wherever the English system of equity prevails, and have been since frequently recognised by this court: Burr v. Sinn, 1 Whart. 265; Smith v. Starr, 3 Whart. 65; Rice v. Bixler, 1 W. & S. 445. It is very true the parties interested- in the fund may elect to accept the land unconverted, and if they do so, will immediately acquire an estate therein. But this must be some unequivocal act, and when there are more than one entitled, all of them must join in the act of election, otherwise it is nugatory.”

The bill in the present case is filed by one or more persons as heirs of the testator, who are, however, only a portion of the persons entitled as heirs or next of kin, and who of course, have no right to elect to accept the land unconverted. The court below awarded a perpetual injunction, restraining and enjoining the executors, defendants in said bill, from proceeding to sell the real estate of their testator. In this we think the court were in error, for it is directly in the face of the positive directions of the will, and there are several legacies to be paid as well as debts, and money to be expended in the improvement of the burial lots belonging to the testator in the Prospect Cemetery. Some of the land is in other states, and it appears to have been the intention to turn all his property into money and to have it brought into the state of Pennsylvania. We therefore are of opinion that the executors have full power to sell the real estate and to distribute it to those persons who are entitled thereto by the laws of Pennsylvania.

The executors, in the discharge of their duties, will of course be under the control of our judicial tribunals, who will take care that the distributees will receive the amounts coming to each of them.

It is therefore ordered, adjudged and decreed that the decree below be reversed and the bill dismissed, at the cost of the estate of the testator.