Martin v. Provident Life & Trust Co.

235 Pa. 281 | Pa. | 1912

Opinion by

Mr. Justice Stewart,

The governing consideration here, as in all such cases, is the intention of the testator. If the intention was that the real estate was to be converted and the several beneficiaries were to take the proceeds as money, the bill was properly dismissed, otherwise it should have been sustained. Where the will contains a positive and unmistakable direction to sell in any event, no question can arise. Where it contains no express direction to sell, and a sale is necessary to carry out the provisions of the will, the inference arises that this is what the testator contemplated. Again, where the testator in disposing of his property blends his real and personal property and creates a single fund out of which the beneficiaries are to be paid, a like inference arises. In the present case it is not pretended that any necessity exists for a sale of the real estate in order to carry out the provisions of the will. Each and every provision can be satisfactorily administered without conversion. The dismissal of appellants’ bill was put exclusively upon the ground that by the terms of the will the real and personal estates were blended for the purpose of raising a fund to be distributed among the beneficiaries. To this construction of the will we cannot agree. When it is manifest that each and every provision of the will can be carried out without a sale of the real estate, and the effort is to derive an intention to convert from the fact of a blending of the real and personal estate, such inference cannot be supported except as it rests on something more than a mere failure on part of the testator to distinguish between the two kinds of property in directing that his estate be divided into shares and so distributed. For, as said in Seeds v. Burk, 181 Pa. 281, the general expression “divide and pay,” per se includes real and personal estate, since land as well as personalty may be the subject of division in kind. True, appellees point to other features of the will as showing a blending of the two estates, but these, as well that to which we have just adverted, are of little significance when compared with another feature which seems to have been overlooked in the discussion, and which to our mind is wholly inconsistent with the theory advanced by the appellees. That there was to be ultimately a sale of the real estate by the trustees, is the contention of the appellees; but when? The will directs that “When and as my said children shall respectively die, I order and direct my said trustees to pay over and divide the share or shares of my estate on which said decedent or decedents shall have been receiving the income as aforesaid, unto and among such person or persons as said decedent or decedents shall by his, her or their last will or wills direct, limit and appoint, and in default,” &c. It will hardly be contended that this provision was a blending of the two estates; that the testator here intended that upon the death of any one of his children an undivided one-fifth interest in his real estate was to be sold in order to pay over to the residuary beneficiaries the share on which such child had been receiving the income; and that like proceeding was to follow upon the death of each survivor. Or, take the case of the widow, who died within three years after the death of the testator. The provision as to her is “And upon the death of my said wife, I order and direct that my said trustees shall hold and dispose of the one-third part of the principal or capital of my said estate on which my said wife had been receiving the income, and apply the income and principál thereof upon the uses and trusts herein declared concerning the remaining two-thirds of my said estate directed to be held as hereinabove set forth for the use and benefit of my children as aforesaid.” It will hardly be contended that this reveals a blending of the two estates, and an intention that upon the death of the widow one undivided third interest of the real estate was to be sold in order that the trustees might apply the income upon the uses and trusts declared. Both the provisions we have quoted show unmistakably that testator clearly distinguished between the two estates; that it was no part of his intention to convert both into a common fund out of which distributees were to be paid; but on the contrary, the intention clearly was that the residuary beneficiaries were to receive their respective shares of the personal estate in cash and succeed to the real estate, as he himself expressed it elsewhere in the will, as though the first takers “had died intestate, seized and possessed thereof absolutely and in fee.” A discussion of the cases cited by counsel with a view to distinguish them, would be unprofitable. There can be no question as to the correct rule to apply when questions like this arise. Controversy only arises where, in the absence of express direction to sell, the effort is to derive an intention to convert from the provisions of the will, general or special. Since it seldom happens that two wills are exactly alike in their terms, exact precedents are correspondingly rare. We have none here; and while many inay be found bearing close resemblance to this, it will be found on examination that we are not running counter to any of these in reversing this decree.

The assignments of error are sustained; the decree is reversed, and it is ordered that plaintiffs’ bill be reinstated with a procedendo.