1; No. 371 | Pa. | Oct 6, 1890
The first assignment of error contains twenty printed pages. It embraces a wide range, including copies of records, etc. It' would be remarkable if an offer of such magnitude did not contain something that was not competent. As it was offered as a whole, it follows that the entire offer must be admissible. If a single item was incompetent, the learned judge below was justified in rejecting it. He may separate the wheat from the chaff, but he is not bound to do so. Without going into detail, it is sufficient to say that the offer was properly rejected.
The case below turned upon the single question whether by the will of John G. Youngman his real estate was converted into personalty. By the second paragraph of said will, he devises his real estate to his children, naming them, and then adds this clause: “ The aforesaid real propert3r my heirs may sell at any time after my death, provided they mutually agree to the time of sale. The proceeds of the sale shall be equally divided among the heirs in equal shares,” etc. This is not a conversion. There is not even an order to sell. On the contrary, the testator merely authorizes his heirs or devisees th sell the real estate he had previously devised to them. He conferred upon them no power which they did not possess without this provision. In order to work a conversion there must be something more than a mere power of sale. There must be a direction or command to sell. It is this direction which works the conversion.
The case was argued with great zeal and earnestness at bar. In addition, we were favored with a printed argument of eighty-seven pages. But neither the zeal of the argument, nor its length, has convinced us that there was a conversion of the real estate of the testator, and with this important question out of appellants’ case there is nothing left.
The decree is affirmed, and the appeal dismissed* at the costs of the appellants.