Yerkes v. Yerkes

200 Pa. 419 | Pa. | 1901

Opinion by

Mb.. Justice Mitchell,

The doctrine of equitable conversion is based on the rule that what is to be, or ought to be done shall be treated as if done already. It is a fiction therefore invented to sustain and carry out the intention of the testator or settlor, never to defeat it. Its application requires constant watchfulness to guard against the tendency to become a formal rule de jure without regard to its real purpose and necessity. It should never be overlooked that there is no real conversion, the property remains all the time in fact realty or personalty as it was, but for the purpose of the will so far as it may be necessary, and only so far, it is treated in contemplation of law as if it had been converted. Few testators have any knowledge of the doctrine or any actual intent to change the nature of their property except when and to the extent that may be required to carry out the special purpose of the will. The presumption therefore, no matter what the form of words used, is always against conversion, and even where it is required it must be kept within the limits of actual necessity. These are very elementary propositions, but it is necessary to recur to them frequently to avoid the tendency already referred to, the danger of which is apparent in many of our cases.

The testator in the present case clearly did not contemplate any change in the nature of his property, except in certain events, which were future and contingent. He first leaves his entire estate to his widow for life, “ she paying all taxes, water rent, and expenses of repairing to keep the estate in good and tenantable order,” thus indicating his expectation that it should continue realty. Then he adds a proviso that if his widow should remarry, she should have only the net income of one third.

The next clause is the important one on which this controversy turns: “ Item. My will is that immediately after the death of my said wife, Hannah, or if she should marry, or as soon as it might be to the advantage to sell it at a fair price, I order and direct my three children, or the survivors or survivor of them, .... to sell all my said real estate, .... subject to the right of their mother therein and the net proceeds of such sale or sales to be divided between them share and share alike, as tenants in common and not as joint tenants; and my will is to be understood to include all my said estate, real, personal and mixed, whatsoever and wheresoever, that I now have or hereafter may have, and die seized or possessed of at the time of my decease, and to be divided share and share alike between my said children, Robert H. Yerkes, Seymour Yerkes and Tillie Yerkes, and to the respective heirs and assigns. But if either of my said children should die leaving lawful issue, such issue to take parents’ share, if but one, the whole, if more than one, share and share alike, as tenants in common.”

This clause it will be seen contains a double gift to his children, of the proceeds of the land and of the land itself. It is not to be supposed that the testator entertained or meant to express any such contradictory purposes. What then was his actual intent ? An examination of the general scheme of the will makes it reasonably clear that he meant to give the land, as land, to his widow for life, and then to his children, including the issue of those who might be dead at the termination of the life estate, as tenants in common. But if the widow should remarry, a complication would arise, and even without that a sale might be for the general advantage, and therefore he gave the direction to sell. But the direction was only intended to meet one or other of these contingencies.

If the first clause stood alone although we might still think his intention the same, we should be met with the difficulty of ignoring the direction to sell “immediately after the death of my said wife.” But if he meant a peremptory sale in any event, why did he add the second clause ? Clearly because a sale was not his object but only a means, and his primary intent which he sought to make plainer was not to give money but land, the sale being merely the most convenient way that occurred to him to produce an equal division. This becomes still plainer when we note that the sale is to be “ subject to the right of their mother therein,” an apt and proper provision for a sale on the mother’s remarriage, or a sale during her widowhood, for the general advantage, but wholly inapplicable to a sale “ immediately after her death.” If we reverse the order of the clauses of the sentence we make the meaning clearer without altering a word. The will is to be understood “ to include all my estate .... to be divided share and share alike between my said children,” and then if we add the first clause with the direction to sell, we have either a direction to sell superposed upon a devise in fee and therefore nugatory, or what is a preferable construction, a direction to sell, which notwithstanding the peremptory form of its first command is meant to be contingent and worked no conversion until the contingency happened.

This construction exonerates the testator from having made an inconsistent and repugnant will, and without altering a word, carries out what was clearly his actual intent.

The suggestion of a trust is inapplicable. The devise is to the children as tenants in common of the legal title, with all the usual incidents of such title, and even in case of a sale under the first clause they were not trustees but joint owners acting jointly but each for himself in the sale of the common property.

Decree reversed and bill directed to be dismissed with costs.