Scott's Estate

37 Pa. Super. 198 | Pa. Super. Ct. | 1908

Opinion by

Henderson, J.,

The question here is whether an equitable conversion was effected by the will of the testator at the time of his death or whether such conversion occurred when the real estate was sold by the direction of the surviving children. The presumption is against conversion, which is a legal fiction introduced on equitable principles to effectuate the intention of the testator. It is only to be resorted to when actually necessary to carry out the testamentary purpose. A direction to convert must be positive and the instrument resorted to must decisively fix on the land the quality of money. The direction to sell must be imperative and explicit: Henry v. McCloskey, 9 Watts, 145; Boshart v. Evans, 5 Whart. 551; Bleight v. Bank, 10 Pa. 131; Nagle’s Appeal, 13 Pa. 260; Stoner v. Zimmerman, 21 Pa. 394; Anewalt’s Appeal, 42 Pa. 414; Neely v. Grantham, 58 Pa. 433; Leiper v. Thomson, 60 Pa. 177; Jones v. Caldwell, 97 Pa. 42; Sauerbier’s Estate, 202 Pa. 187. If it be contingent on the election or consent of the legatee or devisee or other person than the executor, such power of sale does not work a conversion, even where the will provides for a payment of legacies and distribution of the remainder of the fund: Nagle’s Appeal, 13 Pa. 260; Anewalt’s Appeal, 42 Pa. 414. And this is so although the contingency on which the sale depends may never arise. The will under consideration does not contain a positive and absolute direction to sell, and it cannot be contended that a conversion took place because of an express command. It is argued, however, that a conversion is implied from the fact that the testator blended real and personal estate and thereby created a fund from both which he disposed of as money; and further that the will could only be given effect by a sale of the land and that a conversion arose from this necessity. As to the first proposition it may be said that no personal estate of the testator is authorized to be sold, nor is any fund composed of the proceeds of real and personal property provided fór. The reference to personal estate is to “all the personal estate then having properly belonged to my said wife.” Just what the testator meant by that language is not clear, but it certainly does not give us any support for the conclusion that it is a bequest of any part of his own property. If, however, the direction were applicable to the testator’s own estate it would rather indicate an intention to dispose of his personal property in the same proportions as he provided for in the case of the real estate.

We are not convinced that the provision for distribution of that part of the estate in question necessarily and absolutely implies a conversion. The testator evidently understood the .convenience of a sale as an aid to a division, but he very clearly and plainly made the power to depend on the decision of a majority of those entitled to share in that part of his estate and it is only by such consent that vitality could be imparted to the power. If he intended to provide for an unqualified sale we must assume that he would have done so. It does not follow, .however, that intestacy would result from his failure so to do. In Caldwell v. Snyder, 178 Pa. 420, there was a power of sale in the executors, subject to the agreement of the wife and a majority of the heirs of the testator. It was there held that notwithstanding the power of salé a right of partition existed as there was no conversion and the power of sale could only be called into life by the agreement of the widow and heirs. In that case the devisees took unequal shares by reason of advancements and the widow also had an interest, but neither of these was considered an obstacle to partition. In like manner the interests of the devisees here might have been ascertained. We are unwilling to hold that the minority of those entitled to take could be deprived of their estate by the refusal of a majority to move the executors to make the sale. It is a more satisfactory view of the will that the testator provided this method of dividing the estate if the persons to whom it was devised chose to adopt it. But in the absence of such election they were left to their interest in the land. We do not consider Fahnestock v. Fahnestock, 152 Pa. 56, cited by the appellant, an authority for the position contended for. In that case there was provided an express authority to sell all the real and personal estate of the testator at public or private sale and to execute deeds for the real estate. This of itself would not have been sufficient because of the absence of a direction to sell, but it was considered from the whole face of the will to be the intention of the testator to provide for a conversion. The executors were given extensive authority'; were created trustees as to part of the estate; were authorized to make investments in mortgages or other securities, collect the interest or income, pay over the same, and as to one of the legatees a spendthrift trust was created. In view of these provisions the court was of the opinion that it was impossible to comply with certain requirements of the will without a conversion of the real estate. The facts are very different from those presented for our consideration and lead to a very different legal conclusion; Nor is Allison v. Wilson’s Executors, 13 S. & R. 330, pertinent, for in that case there was an undoubted conversion by the will. The command to sell did not depend upon any contingency or condition independent of the executors. The power of sale in the will which we have before us depended for its efficiency on the action of a majority of the testator’s children living at the time of the sale. It was contingent, therefore, and did not operate to produce a conversion at the death of the testator. It follows that the interest of J. Harvey Scott was subject to the Ivory judgment and that by the sale the defendant’s interest was divested.' The decree of the orphans’ court is in harmony with the law applicable to the case and is affirmed.