154 Mass. 7 | Mass. | 1891
By the will of Mrs. Miriam W. Stedman she devised one ninth part of the residue of her estate to trustees, upon the trust to pay the income thereof for life to her daughter, Mrs. Miriam W. Priest, and upon the further trust that, if Mrs. Priest should decease leaving issue, then “ to grant, surrender, and convey to such issue, their heirs and assigns forever,” the share of which “ the parent received the income as aforesaid, to be equally divided among such issue, share and share alike.” Mrs. Priest deceased on May 31, 1888, leaving issue, and before her death three of her children conveyed to Charles A. Hovey, the plaintiff’s intestate, their interest in the estate of which their mother had the income, by a deed which operated, as it is agreed, to convey one quarter of this ninth. Hovey died on June 19, 1886, leaving a daughter, Mrs. Miriam P. Adams, who was his sole heir at law. He had also been married for the second time, and left a widow, who is the administratrix bringing this bill.
The fourth of the ninth part which had belonged to Hovey has been paid over to the defendant, Mrs. Adams, under a decree of the Probate Court, which she sets up as conclusive of her right to it, and which the plaintiff claims is invalid. As we think that Mrs. Adams, as the heir of Hovey, is entitled to the money as real estate, and that the plaintiff as his administratrix has no right to it, we do not find it necessary to consider the character or effect of the decree of the Probate Court.
Where executors or trustees are directed to convert real estate into personal, it will more readily be inferred that the proceeds of such realty are to be held as personal property than where power and authority merely, are conferred upon the executor thus to change investments. In the former case, the direction shows, or tends to show, that the testator has contemplated and understands the change that may be made in the rights of vari
In determining what were the rights of Hovey, or those acquired under him, it will be advisable first to inquire whether, i£ his grantor, Josiah S. Priest, who was one of the sons of Miriam W. Priest, had not conveyed his interest under the will, he would have taken the amount of the fourth of the ninth as realty. It is to be observed that the will contains no direction to turn the real estate into money, but a power only, and the power given to the trustees is apparently for convenient management merely. The executors or trustees might sell the whole, or any part of it, but it is not readily admissible that the testatrix intended that either should thus be invested with any authority to change the rights of those beneficially entitled thereto. After authorizing the executors to convey any portion of the realty, the testatrix adds, “ the proceeds of such sales to be held and accounted for by my said executors in lieti and instead of such real estate.” After the transfer of the property to trustees, the same authority to convert real estate into personal is conferred upon them, and then follows the proviso already quoted, by which the proceeds of the real estate, so far as the trustees exercise their power to make sale thereof, are to be held “ for the same uses and purposes, and none other, as the real estate so sold should have been held for.” The object of this language is to guard against any inference that by the change into personalty the property sold is to lose the character of realty, or that its descent or disposition is to be in any way altered, or any change made in the ben
So far is this from appearing in the case at bar, the language of the testatrix heretofore quoted shows a clearly expressed intention that the proceeds of her real estate, if sold, shall be held for all purposes as real estate. The trustee, so far as Josiah S. Priest was concerned, held the proceeds of the real estate as realty, and so far as he and the trustee were concerned, they would not lose that character until as such they reached him. “As a general rule to be deduced from the cases, we think,” says Chief Justice Shaw, “that in case, of such conversion of real into personal estate, to stand in place of the real, as more beneficial to the parties, without changing the beneficial destination, the character thus impressed on the money will attach to it, until it reaches one who, if it had remained real estate, would take it beneficially, that is, to his own use absolutely, or with a power, like that of tenant in tail in possession, to dispose of it absolutely, or make it his own to all purposes, and it will then be his absolutely.” Holland v. Adams, 3 Gray, 188, 191. While upon reaching him the proceeds would not have retained their artificial character, Priest would yet have received them as realty.
The conveyance by Priest to Hovey did not change the character of the estate or the construction of the will. The estate
Bill dismissed.
