97 Pa. 42 | Pa. | 1881
delivered the opinion of the court, January 24th 1881.
The portion of the will of Michael Andress which is the subject of the present contention is as follows: “After my own and my wife’s decease, it is my will that my executor shall dispose of all my property, real, personal and mixed, without application to the Orphans’ Court; and I hereby authorize my said executor to make legal deeds to suit purchasers of any of my real estate, provided, nevertheless, that they shall publish in two daily newspapers one month, daily, showing the time and place where the same is to be disposed of, -which shall be at public auction; but my executor shall not be bound to make such advertisement or sale if all the legal heirs or their legal representatives shall agree to a division
The single question for our consideration is whether the will works a conversion of the real estate. If it does, the judgment obtained by the defendant in error against Mary B. Durrell, one of the testator’s children, was not a lion upon the real estate, and the judgment entered by the court below upon the case stated must be reversed.
An absolute direction to sell lands after the death of the testator’s widow, and to divide the proceeds among his children, effects an equitable conversion thereof into personalty, and the interest of one of the children is not bound by a judgment against him, before a sale, as real estate: Allison v. Wilson, 13 S. & R. 330; Morrow v. Brenizer, 2 Rawle 185; Burr v. Sim, 1 Whart. 252; Allison v. Kurtz, 2 Watts 185; Gray v. Smith, 3 Id. 289; Simpson v. Kelso, 8 Id. 247; Hess v. Shorb, 7 Barr 231; Willing v. Peters, Id. 287; Silverthorn v. McKinster, 2 Jones 67; Parkinson’s Appeal, 8 Casey 455; Wilson v. Shoenberger, 10 Id. 121; Brolasky v. Gally’s Executors, 1 P. F. Smith 509; Evans’s Appeal, 13 Id. 183; McClure’s Appeal, 22 Id. 414.
In order to work a conversion, however, the direction to sell must be positive and explicit. It must not rest in the discretion of the executor, nor depend upon contingencies. A direction to sell upon a future contingency does not effect an equitable conversion until an actual sale: Nagle’s Appeal, 1 Harris 260; Bleight v. The Bank, 10 Barr 131; Stoner v. Zimmerman, 9 Harris 394; Anewalt’s Appeal, 6 Wright 414; Chew v. Nicklin, 9 Id. 84.
The direction in the will of Michael Andress to sell his estate is as explicit as language can make it. Does the subsequent provision, that, if his heirs shall agree to a division of the estate among themselves, the executor shall not be bound to sell, operate to prevent a conversion ? We are of opinion that it does not, for the reason that the provision referred to is surplusage and may be stricken from the will without altering its legal effect. It merely gave the heirs the right to elect to take the property as real estate. The law gives them this right independently of the will. It is well settled that where real estate is ordered to be sold, the parties interested in the proceeds may elect to take the land as such: Smith v. Starr, 3 Whart. 62; Rice v. Bixler, 1 W. & S. 445.
The testator must have intended a conversion even in the event of a division of the estate among the heirs by agreement. There were eight heirs, and there appears to have been but five separate properties of unequal values. Bo that as it may, to have divided them would have required either a sale between themselves or partition according to law. The latter would have necessarily involved an appraisement and sale, and hence a conversion. It was held in
The foregoing views are not in serious conflict with Neely v. Grantham, 8 P. F. Smith 433. The facts of that case are essentially different. A testator directed that his wife should have his mansion-farm for life, and further ordered : “ It is my will that if any one or two of my children wish to hold the old mansion property, after two of them is of age, they can do so by agreeing among themselves; if they cannot agree, they can get three disinterested persons to divide and agree for them, the eldest to have the first choice, and each of my children’s share remaining in the property until they arrive at twenty-one years. If, in case none of my children purchase the old mansion, it must be sold to the best advantage for the use of my children, and not until after the decease of my wife.” An attachment in execution was issued against the son, and served on the executors as garnishees. It was held that the attachment bound the proceeds of the sale of the lands in the hands of the executors. Thompson, C. J., and Read, J., being of opinion that there was no conversion, but that the land was bound as such by the attachment; Sharswood, J., that the order to sell worked a conversion, and it was bound as personal estate ; and Strong and Agnew, JJ., dissented. It will thus be seen that while three of the judges concurred in the judgment, though for different reasons, four were of opinion there was no conversion.
It must be conceded that the distinction between Neely v. Grantham and the .later case of Laird’s Appeal, supra, is very slight. Yet there is a difference. In Laird’s Appeal the provision was that any of the testator’s sons might take the real estate at the appraisement. This required an agreement between the sons as to who should take. They could have so agreed, and the property could have been taken without the provision of the will. In either event there would have been a sale and a conversion of the estate into money, which is precisely what the testator intended. In Neely v. Grantham the provision was “that if any one or two of my children wish to hold the old mansion property, after two of them is of age, they can do so by agreeing among themselves.; if not agreeing, they can get three disinterested persons to divide and agree for them, the eldest to have the first choice, and each .of my children’s share remaining in the property.” This clause of the will could not be stricken out without essentially changing its legal effect. The right is not given to all the children to take; it is to one or two only, and the eldest to have the right of choice. It is true the children might have dis
Neely v. Grantham does not seem to have been called to our attention, when Laird’s Appeal was decided. It was not cited, so far as the report shows, nor is it referred to in the opinion of the court. It appears, however, to have been rightly decided, and does not need qualification. The principle we regard as sound, that where there is a positive direction in a wfill to sell real estate, and it is coupled with no qualification as to a division of the property between the heirs, other than that which the law gives, such direction to sell works an equitable conversion. I do not see that this interferes with Neely v. Grantham; if it does, that case must give way to this extent to the later case of Laird’s Appeal.
The judgment is reversed, and judgment for the defendant below upon the case stated.
