Sheridan v. Sheridan, 136 Pa. 14

Sheridan v. Sheridan

136 Pa. 14 | Pennsylvania Court of Common Pleas, Philadelphia County | 1890

Opinion,

Mr. Justice Williams:

There can be no doubt that the Court of Common Pleas has jurisdiction by bill in this case. Prior to 1845, partition could be made in that court only on the law side, and by action ; but the act of March 17, 1845, conferred upon the Supreme Court in and for the Eastern District of Pennsylvania, and upon the Court of Common Pleas of Philadelphia county, jurisdiction in equity in all cases of partition. Afterwards, by the act of February 14, 1857, this jurisdiction was extended to the several courts of Common Pleas throughout the state, so that these courts now have ample power, on the equity side, to make partition in all cases where the title of the plaintiff is clear. The real question raised by this appeal is whether the plaintiff shows such a title as gives him standing in a court of equity.

*21The bill sets out that Elizabeth G. Sheridan was in her lifetime the owner of a tract of land in Philadelphia containing about twenty-two acres, with mansion and dwelling-houses, barn and horse-stable, and greenhouse thereon; that she died in September, 1886, leaving a will, which was duly proved, disposing of her entire estate; that by the terms of the said will she directed that her estate be divided into “ four equal shares or portions,” one of which she devised to each of her three children for and during the term of his or her natural life, and the remaining fourth part she directed should be divided into as many parts as she should leave grandchildren living at the time of her death. These she disposed of as follows: “I give, devise, and bequeath one of said shares to Richard, child of my deceased son Owen, absolutely, when he shall attain his majority, and to be held by my executors in trust for him during his minority.” She then gave the other shares in the one fourth to her other grandchildren, naming them, but provided that the share of each be held in trust during his or her minority. Upon the death of each of her three children, she directed that the share held for life by such child should be divided among her grandchildren in the same manner as the one fourth given to them directly by the will was divided; thus securing her entire estate to her grandchildren, to be divided among them per capita. The bill further averred the majority of the plaintiff, and his right to have absolutely the one tenth of the one fourth of the estate under the terms of the will; the death of the executor, Joshua T. Owen, and the appointment of the Commonwealth Title Insurance & Trust Company as his successor in the trust; and that the testatrix left tén grandchildren to survive her, including the plaintiff.

The defendants demurred to the bill, setting out as ground of demurrer that the will contained a clause giving to the executors power “to sell and dispose of the whole or any portion of my real and personal property, at public or private sale, if they find it necessary to do so in order to make a fair and equitable division of my estate.” This, it was urged, vested the title to all the estate in the executors, and worked a conversion of the real estate into personal, so that the plaintiff, having no title, could not be heard to ask for partition. The court below sustained the demurrer and dismissed the bill, and this decree is assigned for error.

*22The question thus raised is over the construction of the will of Mrs. Sheridan. It is not alleged that the executors had made an actual conversion of the real estate by sale, but 'the conversion asserted is a constructive one, resting on the clause of the will incorporated into the demurrer. It will be noticed that this clause contains no direction to sell. It gives a power to sell, but it leaves the question whether that shall be exercised or not to the discretion of her executors. If they “ find it necessary to do so in order to make a fair and equitable division of my estate,” then they may sell, but for no other purpose.' If they do not find it necessary to a fair and equitable division, then they have no power of sale. The reason why a power of sale works a constructive conversion is that it makes an actual conversion certain, and the estate is treated as having at once the qualities which, under the terms of the power, it must necessarily have when the power is executed. When, therefore, there is no direction to sell, conversion in fact may never take place, and the reason for the doctrine of constructive conversion does not exist. A bare power to sell is not enough: Chew v. Nicklin, 45 Pa. 84. Nor is a power that may be used or not, at the discretion of the executor: Bleight v. M. & M. Bank, 10 Pa. 131. But a clear direction to sell for the purpose of making distribution works a conversion: Brown’s App., 27 Pa. 62; Mellon v. Reed, 128 Pa. 1; and the estate will be treated as having the same qualities, and as distributable in the same manner, before the sale as after.

These cases rule the question now before us. The will contains a naked power of sale, to be used only for a single purpose, and upon the contingency that the executors find it necessary for a fair and equitable division of the estate. This is not enough. Upon looking over the will, we are led to conclude that Mi's. Sheridan regarded the exercise of the power as at least doubtful, and not, in her own view, necessary to the proper division of her estate. This appears in her direction that her son Robert should have the privilege of selecting as or upon his share that portion of the land which had once belonged to him, and which she had bought at sheriff’s sale when it was sold from him. This right was made subject to the power of sale, and would have been swept away by its exercise; but, if not thus divested, his right to take the particular land indicated *23is beyond question. But her view of tbe effect of tbe power is made evident by the terms she has employed in conferring it. “ If they find it necessary,” they may sell, but only for one purpose. She says, in effect, “You may sell if you find that you must do so in order to make a fair division in accordance with my will; otherwise, you may not sell. Divide my estate, if you can do so fairly among those entitled to it, without a sale. If you cannot, then you may sell, and make division of the proceeds.” Under the terms of this will, the executors held the title of the plaintiff, during his minority, in trust for him; but, when he reached the age of twenty-one years, he came into the' legal estate ; the trust was at an end, and with it the title of the trustees. He is the absolute owner of the share devised to him in the estate of Elizabeth Sheridan, and that estate has neither been converted into personalty by the act of the executors, nor by the operation of any rule of construction. It follows from what has now been said that the demurrer presented no reason for dismissing the plaintiff’s bill, and it should have been overruled.

The decree of the court below sustaining the demurrer is therefore reversed.