178 Pa. 106 | Pa. | 1896
Opinion by
Percie A. Taylor, a married woman, died in February, 1880, leaving her husband, George A. Taylor, and an infant son, this plaintiff, to survive her. She was owner at her death of twenty-three acres of improved land, on which was a gristmill. Her husband, at her death, was operating the mill and managing the property. There was no other property, except her clothing and some personal jewelry. She left a will in which, after bequeathing her small quantity of personal property to her husband, son and near friends, she thus disposed of her real estate:
“ The balance of my property to remain as it is under the care of my husband, he to carry on his business the same as if I was here, and to reap all benefits so long as he lives, my husband to have power to sell it at any time, and when sold and all debts on property paid, he to receive $2,000 of my money and balance to be put on interest under his care for my son Herbert. This is my will and to be carried out by my husband.”
The will was duly proved October 9,1882, and letters testamentary issued to the husband, who on October 26 following, sold the property at public sale to Urias K. Goodman for $10,500. This sale, it is undisputed, was merely colorable, the purchase ■ being for the husband and executor, who had instructed the auctioner to knock the property down to Goodman, as, no matter what it brought, he wanted it for himself. Taylor, then, as executor, on April 1, 1883, executed to Goodman
If the defendants, on the faith of a judicial sale under the order of the orphans’ court for payment of debts, had, after confirmation, accepted the administrator’s deed and paid their purchase money, it is possible quite a different question would have been presented than the one now before us; but they do not stand in the attitude of innocent purchasers who, without notice, have paid their purchase money; nor even in the attitude of purchasers who, forgetful of the doctrine of. caveat emptor, have been misled by a judicial decree into impliedly assuming a good title in the husband; the extent of their venture is a formal bid by which they are as yet not seriously hurt; the orphans’ court, which is a court of equity, is still open to them for such equitable relief as a chancellor, in view of all the facts, adjudges them entitled to.
The question then is, solely, what was the intent of Mrs. Taylor by the devise in the will already quoted? There was a distinct alternative gift to the husband: 1. He could have the property and carry on his business of milling the same as if she were alive so long as he lived; or, 2. He could sell the property, and receive absolutely of the purchase money $2,000,
But it is argued by appellees, the will, by a direction to sell, worked a conversion ; that there was an express power to sell, and direction to distribute the proceeds as money, therefore, the son has no interest in the land, but must look to the purchase money.
There was not here, as in many of the cases cited by appellees, a blending of real and personal estate to raise money for distribution; the estate was land exclusively; specific bequests of the personal property had passed all she had to other legatees. Nor.was there any positive direction to sell the land; the words, “ the balance of the property to remain as it is under the care of my husband,” indicate, as before noticed, a desire that its character should not be changed; then follow the words “ My husband to have power to sell at any time,” if he chooses to take the $2,000 in money. This language fails to express any positive direction to sell; at most, confers a power to be exercised at the option of the executor. To establish a conversion of land intoi money under a will, the sale must be absolutely directed, irrespective of contingencies, and independent of discretion: Anewalt’s Appeal, 42 Pa. 414; Peterson’s Appeal, 88 Pa. 397. We do not see that this will conferred more than a power to be exercised upon a contingency; until the exercise of the power in accordance with the terms of the will the estate remained land. And there never was a valid exercise of the power as against the plaintiff; there was the semblance of it,
For these reasons, the judgment is reversed and a v. f. d. n. is awarded.