Moore v. RobbinsMoore v. Robbins
Thе decree appealed from distributes among thirteen surviving nephews and nieces of William D. Jewell, deceased, who are-his next of kin, some $63,000 surplus of his estate over that, portion thereof which his will disposed of.
The appeal is taken by the three children of a deceased’ nephew, because they claim that the sum distributed consists in-part оf $15,183.39, proceeds of the sale of real estate, which, should have been regarded as realty, and, in part, apportioned» to them.
The will of Mr. Jewell, after directing that his dеbts and funeral' expenses should be paid by the executors thereof, continues in this language:
“Article II. It is my will and I do order and direct that all my real estate-shall be sold by my executors within one year after my decease, or as soon, thereafter as to them shall seem wise and in any manner that to them shall ’ seem best, and I do hereby authorize and empower them to execute therefor good and sufficient titles.”
It then proceeds, by Article III., to bequeath general money legacies aggregating $16,300 and a specific legacy of a silver-watch, and to devise a wood-lot of land. Then, by Article IV.,. it continues:
“ I give and bequeath the sum of one hundred thousand dollars ($100,000),. to be divided by my executors into five equal parts, and the same to be distributed by them as follows, viz.”
Then follows a specification of the way in which the $100,000' is to be distributed, the result of which is that one of the parts-
The real estate, exclusive of the wood-lot, was sold by thе-executors for $15,183.39. The debts and legacies, including the $100,000, have all been paid, and there remains in the hands-of the executors, undisposed of by the will, $63,000.
It is conceded that if the prоceeds of the sale of the real estate-, are to be treated as personal property, the decree of the orphans court is correct.
The quеstion presented and argued is, whether the testator meant that- his realty should be converted into money and treated as such in the settlement and distribution of his estate.
That a testator may direct a conversion of his real estate into personalty for all purposes or for special purposes indicated by his will, cannot be questioned. As to thе time when the conersion will take effect, Chancellor Zabriskie, in Cook’s Executor v. Cook’s Administrator, 5 C. E. Gr. 375, 377, said:
“ When land is directed to be sold, absolutely and positively, without any time fixed for the sale, it is considered as converted into money from the deatli of the testator, but for this the direction must be imperative. If it is optional with the executor whether to sell or not to sell, or if it is only an authority to sell without any direction, then the land retains its character as land until it is actually sold. If the direction of the will, as to the proceeds, requires a sale, it is equivalent to a positivе direction to-sell and the land is deemed personal property from the death of the testator.”
This epitome has the approval of our equity courts. Wurts’ Executor v. Page, 4. C. E. Gr. 365, 375; Dutton v. Pugh, 18 Stew. Eq. 426, 428; S. C. on appeal, 1 Dick. Ch. Rep. 554 subnom. Jones v. Jones; Roy v. Monroe, 2 Dick. Ch. Rep. 356, 359.
It is also established that thе disposition which the will makes-of the proceeds of a conversion of real estate required, is the disposition of personalty. Dutton v. Pugh, supra; Roy v. Monroe, supra; Scudder v. Van Arsdale, 3 Beas. 109.
“The money must, for the purposes of succession, be regarded as pоssessing precisely the same heritable and transmissible quality or character which the property it represents had at the death of the testator, and it must be given to the heir if it rеpresents land, and to the next of kin if it represents personalty, unless the testator has, in his discretion for conversion, plainly declared that his intention in directing a conversion was not merely to change the nature of his property for the purposes of his will, but to change it for all purposes, whether it passed under the will or not.”
The principle has had recognition, also, in Brearly v. Brearly,
“ It is now fully established, that, in ordеr to exclude the heir, it is not enough that the testator shows an intention that his real estate should become money after his death; it must also be apparent that he meant it to be treated as if it had been personal estate before his death; for, if the property in question was real estate at his death, the onus is on the next of kin to show a devise оf it in his favor; and, though the will may determine in what quality the property shall be taken by those on whom it may devolve, yet, if it does not also determine who are the persons to take, the original right of the heir-at-law must prevail. Therefore, the testator’s declaration, however explicit, that the estate shall be absolutely converted,- e. g., a direction that it shall be sold and deemed part of his personal estate, will, not exclude the heir, because such a direction does not, generally speaking, amount to a gift by implicаtion to the next of kin. * * * It is plain, therefore, that where the conversion of land into money is directed by the testator for a particular purpose, which fails (as in the casе of the death óf a party intended to be benefited), so much of the estate, or of its produce, as remains undisposed of, will result to the heir.” . . • , ■
The purposes of Mr. Jewell’s will were tne payment of his
The provision for the conversion stands by itself, disconnected in language and paragraph with the subsequent bequests. It is only by implication, from the schеme of the will and the fact of the existence of the direction for conversion, which in absence of such implication would be a useless requirement, that'we can conclude that the testator’s design was to make his whole estate answerable for the accomplishment of his purpose, that the legacies provided should be paid, and to that end that the executors should be clothed with power of sale to raise a fund from the real estate to supplement the personalty, if need be, in making the payments directed, or, perhaps, more accurately and strongly speaking, directing them to sell the real estate in order that they should have a fund in readiness for the pui’pоse indicated.
■ The question whether proceeds of the sale of realty, after they have become part of a blended fund for the payment of legacies, will go to the heir, is not presented. There is no indication of an intention, either by expression or by implication in the will considered, that the moneys realized from the personalty and thе realty are to be blended in a common fund. The accomplishment of the purposes of the will does not require such blending of the moneys. The personalty is primarily bound to thе payment of debts and legacies. It is only upon its exhaustion that the fulfillment of the will necessitates a call upon the realty, and, in absence of provision to the contrаry, we must imply that this legal order of liability is to be observed in furtherance of the rule stated, that the heir is not to lose anything by the direction for conversion except that which the will рlainly takes from him.
The event of the administration of the estate has shown that the personalty was more than sufficient to bear the burden to which it was liable, and therefore that nо necessity existed for calling upon the proceeds of the realty. Without the assistance
It is noteworthy that the disposition the will makes of the $100,000 follows the statute of descents, and that when that circumstance is considered' with the fact that the realty was subjeсted to the creation of a fund for that $100,000, as though the testator anticipated a possible insufficiency of personalty, it is not a forced inference that the testatоr’s contemplation was the distribution of his entire estate according to the statute regulating the descent of real estate.
The conclusion stated leads to the reversal of the decree of the orphans court.