Simpson v. Kelso

8 Watts 247 | Pa. | 1839

The opinion of the Court was delivered by

Rogers, J.

In Burr v. Sims, 1 Whart. 252, it was decided, first that land directed by will to be sold and converted into money, is to be considered as a devise of money, and that by the devise, the character of money is so impressed upon it, that it is thereafter to be treated as of that description of property; and, secondly, that an election on the part of the devisee, operated as a new acquisition; that the property, in legal contemplation, did not come from the father to his son as land, but as money; but by an act of his own was reconverted into land. This was a decision on the act of 1794, which is not, in this respect, altered by the ninth section of the act of the 8th of April 1833. The latter act was not intended, as is said, materially to alter the system as contained in former acts, but to consolidate and simplify the provisions, alter the phraseology and order of arrangement, and reduce the law into a smaller compass, so as to save much time and labour of those who wish to examine its details. Whether the legislature have conferred any very great benefit by this change, may admit of doubt; but be this as it may, we do not feel disposed to alter the construction of former acts, from a difference of phraseology merely, or any new order of arrangement, unless the intention to alter the law is very apparent. It is far better to take the law as before understood, rather than yield to nice and fanciful distinctions, arising from trivial differences in the wording of the acts. In the ninth section of the act of the 8th of April 1833, it is provided, that no person who is not of the blood of the ancestors, or other relation from whom any real estate descended, or by whom it was given or devised to the intestate, shall, in any of the cases before mentioned, take any estate of inheritance therein; but such real estate, subject to such life estate as may be in existence by virtue of this act, shall pass to arid vest in such other persons as would be entitled by this act, if the persons, not of the blood of such ancestor or other relation, had never existed, or were dead at the decease of the intestate.

The question, therefore, is, did the residue of the testator’s real estate, mentioned in the will as situate on the north side of the road, with the ferry, &c., pass to the devisees as money or as land. And it is clear, according to the authority of Burr v. Sims, it came to them impressed with the character of money, and that it was afterwards reconverted, by an act of the devisees, into land. According to the case cited, it was a new acquisition or purchase by them, and descended, on the death of the purchaser, to the next of kin, without regard to the persons who were of the blood of the testator. As land, it neither descended, nor was it given or devised to him by the testator. By the devise, the land was immediately converted out and out into money, and as such went into the possession of the devisees. It must be observed that this clause of the will has no connection with a former part of the devise, in which it is said that the real estate shall continue in the hands of the executors uutil William, another of the sons, arrives at the age of twenty-one; at which time, if he inclines to enter into business, he directs the executors to sell the south side.

Judgment affirmed.