134 Iowa 603 | Iowa | 1907
-Edward Bernhard died in June, 1902, leaving a will, the eighth paragraph of which was as follows : “ I give and devise unto Henry Wollgast and Carl Wollgast all the real property I own in Ft. Madison, Bee County, Iowa, share and share alike, excepting my homestead which I hereafter divide.” By the tenth paragraph of his will he gave all the rest and residue of his estate to the petitioning appellees herein; thus devising to said petitioners all of his personal estate, aside from certain specific legacies bequeathed in other paragraphs of the will. This will was executed -in October, 1901. At the time of the execution of'the will, and at the time hereafter, mentioned, the deceased was the owner of lots 34, 35, and 36 in Ft. Madison, Iowa, and on the 12th day of April, 1902, he executed a contract, by the terms of which he agreed to sell to the trustees therein named the said lots. Three hundred dollars of the purchase price was paid at the time of the execution and delivery of the contract, and the trustees therein obligated themselves to pay the balance of the purchase price of $2,000, $500 on August 1, 1902, $600 November 1, 1902, and $600 on the 1st of March, 1903. The contract further provided that, upon the completion of the payments therein named, the vendor should execute and deliver a good and sufficient warranty deed of the premises. It further provided that, in the event of the nonpayment of the sums therein provided for or any part thereof, said Bernhard might elect to consider the contract at an end, and “proceed to extinguish the claim” of said trustees as by
The legal question presented by this record is whether the money in the hands of the court or the .executor is personal property which is to be distributed under the residuary clause of the will, or whether it should be treated as real estate devised by the eighth clause of the will. The appellants claim that the bond for a deed was an executory contract, and did not pass any title, either legal or equitable; while the appellees contend that there was an equitable conversion of the real estate into personal property, and that such personal property passed upon the death of Bernhard to his executors as personalty. We do not find it necessary to determine in this particular case' whether the bond in question passed even an equitable title to the vendees named therein, although we are inclined to the opinion that, taken as a whole, it may fairly be said to have passed such equitable title. It is well established in both England and this country that land which is sold or contracted to be, sold and turned into money is to be considered as that species of property into which it is directed to be converted, “ and this in whatever manner the direction is given, whether hy
Where such conversion is by contract, it is only necessary as a general rule that the contract be enforceable. The question in such cases is whether the vendor or purchaser, as the case may be, at the time of his death, was either absolutely or contingently under such an agreement as equity would enforce against, him. Dart on Vendors, 338 (4th Ed.); Keep v. Miller, 42 N. J. Eq. 100 (6 Atl. 495); Williams v. Haddock, 145 N. Y. 144 (39 N. E. 825). If a contract for sale of land might have been enforced against the vendor had he lived, the conversion from realty into personalty may be completed, even though the vendee has not paid the purchase price, and even though the contract be executory in character. This seems to be the settled rule of the cases relating to equitable conversion. In 2 Story’s Eq. Jur. 112, it is said: “ So, if a trustee should take property with absolute directions to sell and convert it into money, there, although the directions were not carried into effect during the life of the party creating the trust, the property would be deemed personalty.” The same rule is announced in Boland v. Tierney, 118 Iowa, 59, and in Warren v. Taylor, 56 Iowa, 182. See also, In re Strang’s Estate, 131 Iowa, 583; Newport Waterworks v. Sisson, 18 R. I. 411 (28 Atl. 336).
Under the rule of these cases, where a testator in his will directs a sale of real estate, the property is thereby converted from realty to personalty, and, whenever the sale takes place the proceeds arising therefrom are to be distributed
We are abidingly satisfied that the district court reached the right conclusion in this case,' and its judgment must be and it is affirmed.