108 Tenn. 145 | Tenn. | 1901
This cause involves questions of equitable conversion of realty into personalty, and of equitable re-conversion of tbe same personalty into its original form as realty.
No doctrine, within its proper scope, is more
However made, to be effective as a conversion, the direction that the form of the property be actually changed must be imperative, in the sense of being positive and unmistakable. 2 Underhill on Wills, Sec. 696; 2 Story’s Eq., Sec. 1214; 3 Pomeroy’s Eq., Secs. 1159 and 1160; Adams Eq., 136; Wait’s Exrs. v. Pape, 19 N. J. Eq., 375; Ford v. Ford, 70 Wis., 19; Hobson v. Hale, 95 N. Y., 598; Wheless v. Wheless, supra, 296, 297.
' After a careful consideration of the testator’s words, it is perfectly clear to our minds that he intended that his executor should sell the real estate referred to, convert it into money, and distribute the money, as such, among the designated beneficiaries, and in the proportions mentioned. It is true that, in the disposing clause, he ’speaks of the property dealt with as both “real and personal,” and that he gives a .definite undivided part thereof to each of the beneficiaries, yet in
Since the sale contemplated was not directed to be made at any specified time in the future, and was not conditioned upon the happening of any contingent event, the conversion took place upon the death of the testator, concurrently with the initial operation of his will. 3 Pomeroy’s Eq., Sec. 1162; Wheless v. Wheless, supra, 298.
The fact that the. legal title and the beneficial interest passed to the same persons by the terms of the will, did not, of itself, prevent a conversion; for, notwithstanding that, fact, it is en
To hold that such coincidence of itself defeated the equitable conversion, would be to destroy the most important feature in the scheme of the will, and reverse the universally acknowledged rule that the expressed intention of the testator must control, when not in contravention of some principle of law or sound public policy.
As well said by Judge Wilson, speaking for the Court of Chancery Appeals, “the will, by force of its own specific terms, effected its own equitable result, irrespective of the mere personal lodgment (for the time being) of the legal title.”
What has thus far been said, meets the objections raised in the first and second assignments of error.
The real estate disposed of by the second item of the will, and here concerned, consisted of an undivided one-half interest in the Union Stock Yards, of Chattanooga, and a small lot near the Central depot, in that city.
The original bill in this cause was filed by one of the sisters of the -testator, and her husband, against the other co-tenant of the stock yards, the executor, and the other devisees and legatees under the will, to compel a settlement of the executor’s accounts, and to sell the real estate of the testator, including that just mentioned, for a division of proceeds among those entitled under the will to receive the same.
In due course of procedure a sale was ordered, but before it actually took place, Mrs. Webster, one of the testator’s sisters, and a defendant to the suit, died, childless, leaving, however, a husband by whom she had born a child, that died before she did. The sale went on, the stock yards bringing $26,000.00, and the other lot $2,800.00. One-half of the former sum, and all of the latter, in the aggregate $15,800.00, represented the real estate disposed of by the second item of the will. Had Mrs. Webster lived, she would have been entitled to receive one-fourth of this $15,-800.00; having died, her husband, as such, and
If her interest at the time of her death was personalty in legal contemplation, be is now entitled to one-fourth of the fund, all of her part, as bis own jure mariki (Hays v. Bright, 11 Heis., 325; Loftus v. Penn., 1 Swan., 445; Trafford v. Express Co., 8 Lea, 111, 112; Smalling v. King, 5 Lea, 590), but if it was realty, be is entitled to only a life estate, as tenant by the courtesy, and the remainder belongs to bis wife’s heirs, who are now making this contest with him.
Aside from the question of equitable conversion, the interest of Mrs. Webster at the time of her death, would unquestionably have been realty, and subject to descent as such; for the order of sale, which bad not been executed at that time, was not of itself sufficient to convert the land into personalty. Sale and confirmation would have been necessary to accomplish that result, and these having occurred after her death, the proceeds would follow the same course that the land would otherwise have taken. Moore, ex parte, 3 Head, 171; Cowden v. Pitts, 2 Bax., 59; Smalling v. King, 5 Lea, 590.
The question of equitable conversion in the first instance, and simultaneously with the death of the testator, and that, too, notwithstanding the presence of the legal title and beneficial interest in the same persons, however, has already been
It was clearly competent for those concerned to bring about a reconversion at any time before the realty devised was actually converted into personalty ; that is, it was, beyond question, within their power to waive the executor’s obligation to sell, or to countermand the trust, and by election, on their part, take the land to themselves in its original character, as realty. The mere existence of this unquestionable power, however, is of no special efficacy in itself. It ' must have been exercised; the election must, in fact and unmistakably, have been made in the lifetime of Mrs. Webster to have accomplished a reconversion.
“Where the trust is countermanded by subsequent owners, their act is denominated reconversion. And such act must be equally unequivocal with the original trust.” Adams Eq., *136, *137.
In an early case before the Federal Supreme Court, Mr. Justice Washington, speaking on this subject for that tribunal, observed: “Thus, when the whole beneficial interest in the money in the one case, or in the land in the other, belongs to the person for whose use it is given, a Court of equity will not compel the trustee to execute the trust against the wishes of the cestui que trust; but will permit him to take the money or land, if he elect to do so, before the conversion has actuaily been made; and this election he may make, as well by acts or declarations, clearly indicating a determination to that effect, as by an application to a Court of equity. It is this election, and not the mere right' to make it, which changes the character of the estate so as to make it real or personal, at the will of the party
There being several beneficiaries in the present case, it was indispensable to a re-conversion that all of them concur in the acts constituting an election to retain the land as such. Baker v. Carpenbarger, 15 Ill., 103, S. C., 58; Am. Dec., 600; 2 Jar. on Wills, 191, 192; 7 Am. & Eng. Ency. Law (2d ed.), 481.
Jarman, on the pages just cited, observes: “That in order to amount to an election to take property in its actual, as contradistinguished from its eventual, or destined, state, the act must be such as to absolutely determine and extinguish the converting trust, and hence it would seem to follow, that where two or more persons are interested in the property, it is not in the power of any one co-proprietor to change its character, in regard even to bis own share; for, as the act of the whole
Of course, the burden of establishing a countermand of the trust, a reconversion of the estate, is upon those who assert it. They must show the election claimed, by proof of some unequivocal act or declaration of the beneficiaries, evincing an intention on their part to extinguish the trust and terminate the equitable character impressed upon the property in the first instance by the instrument conferring the benefit.
It does not appear that the persons interested in the present devise ever had a conference in reference to a reconversion of this property, or even spoke a word or entertained a thought favorable to such a result. They are not shown to have made any declaration on the subject, or to have indicated in any way that they wished to countermand the direction of the testator, or that they perferred the land to the proceeds of its sale.
All they seem to have said or done in the matter was said and done in the original pleadings in this cause; and there, in the bill and answers, they simply referred to the devised property as “land,” or “real estate,” and asked, on the one hand, and agreed, on the other, that
No more did the decree of sale work a reconversion of the property. The question of reconversion was not presented in the pleadings, nor adjudged in the decree. The latter is in the usual form of a decree directing the sale of land for division among- the owners; and, as it must have done in any event, like the pleadings, it referred to the property as “land,” or “real estate.” |For the purposes of sale, “land,” or “real estate,” was the only appropriate designation of the property in either the pleadings or the decree,' such being its nature in fact, notwithstanding the equitable conversion by the will. It is manifest, therefore, that the decree cannot be properly construed as adjudging, directly or indirectly, the question of reconversion; and that it cannot, though unappealed from, now be made available as res adjudícala of that question against the present contention of Webster.
Nor does the failure of the executor to sell the property, as he was directed to do, or the fact that the Court was asked to make the sale, militate in any degree against the continued survival of the original equitable conversion. The
The Chancellor, in his decree on Webster’s petition, adjudged that the realty involved was equitably “converted into personalty” by the will, “but that it was reconverted into real estate’’ at the time of the death of petitioner’s wife, Mrs. Webster, “by her, and his acts, and the decree in the cause”; and consequently, that her proportionate part of the money, afterwards realized by the sale of the property, became his for life only as tenant by the courtesy, and that the remainder passed to her heirs at law.
The Court of Chancery Appeals held, with the Chancellor, as we have done, that the direction of the will wrought an equitable conversión of the realty into personalty, -and it held against him, afe we have done, that there was no reconversion. And thereupon the latter tribunal rightly adjudged that Mrs. Webster’s interest at her death, before the actual sale, was personalty in an equitable sense, and as such passed to him absolutely jure mariti.
Concerning “the acts” of Webster and his wife,
Affirmed.