The decedent, Elizabeth F. White, died testate on February 23, 1943, and letters testamentary were duly issued. The executor ultimately filed an account, which showed that he had received $715 on personalty and $1,950 on the sale of the only tract of real estate owned by the decedent at her death. The account revealed expenditures of $877.06, leaving a balance for distribution of $1,778.16. The latter sum, of course, is the balance realized from the sale of real estate.
The executor filed with his first and final account a statement of proposed distribution, which first proposed to pay, in its entirety, a judgment entered by John Sennett against the decedent in her lifetime in the sum of $900, with proper interest thereon from January 15, 1942. This judgment, entered January 14,1939, was a lien on the decedent’s real estate at the time of her death, and under section 15 (g) of the Fiduciaries Act of June 7, 1917, P. L. 447, continued to be a lien on the real estate or proceeds thereof for a period of five years after the decedent’s death. The executor was therefore correct in proposing that this judgment be first paid out of the proceeds of the real estate.
After the payment of the Sennett judgment there will be left for distribution a little over $700. The executor proposed to distribute this, pro rata, among J. R. Shulenberger, an undertaker, Dr. E. S. Kronenberg, a physician, and the Carlisle Hospital. The
The executor filed his petition to sell the decedent’s real estate for the payment of debts on February 29, 1944. The real estate was sold to the decedent’s daughter and her husband for the sum of $1,950, and this sale was confirmed on April 18, 1944. It will be observed that the proceeding to sell the decedent’s real estate was instituted more than one year after her death.
The creditor Shulenberger has filed objections to the distribution proposed by the executor, and claims that the entire debt due to himself should be fully paid out of the balance for distribution after payment of the Sennett judgment. Shulenberger’s contention is based on the theory that when the real estate was sold his judgment and that of Sennett were the only liens against the real estate, and that the liens of the debts due the physician and the hospital, not having been continued within a year from the decedent’s death, had ceased to be liens when the real estate was sold and that these creditors are, therefore, not entitled to any share of the proceeds upon the sale of the real estate. The physician and the hospital contend that the distribution proposed by the executor is correct on two grounds: First, that the will of the decedent worked an equitable conversion of the real estate; or, second, that the debts were a charge on the real estate and that consequently the fund for distribution must be treated and distributed as personal property and that Shulenberger gained nothing by his attempt to preserve his lien.
To answer the questions thus presented, it is necessary to examine the decedent’s will. The first para
“In order to work a conversion, however, the direction to sell must be positive and explicit. It must not rest in the discretion of the executor, nor depend upon contingencies. A direction to sell upon a future con*635 tingency does not effect an equitable conversion until an actual sale. . . .”
The following pertinent language appears in Yerkes v. Yerkes, 200 Pa. 419, 423:
“The doctrine of equitable conversion ... 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. . . . 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.”
It is then pointed out in the case cited that the testator therein did not contemplate any change in the nature of his property except in certain events, which were future and contingent. He first left his entire estate to his widow for life, “she paying all taxes, water rent, and expenses of repairing”, thus indicating his expectation that it should continue realty. The will thereafter provided for sale of the property in the event of the marriage of the widow, and the court concluded (p. 424) :
“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 . . . But if the widow should remarry, a complication would arise, but 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.”
Nor was a conversion effected because the will reveals an absolute necessity to sell in order to execute it. In the first place, the will reveals that there was no necessity to sell the real estate if the daughter had complied with the decedent’s desire that her personal estate and the proceeds of insurance should pay her debts. In the second place, no such necessity appears on the face of the will, for the reason that the law itself would have required the sale of the real estate if the debts were not otherwise paid.
Nor can we find any conversion because the will provided for such a blending of real estate and personal estate as clearly to show an intention to create a fund out of both real and personal estate and to bequeath the fund in money. True, the will contained a residuary clause which blended real and personal, estate, but we cannot imply a blending for all purposes as working a conversion in face of a specific devise of a life estate in the real estate in question to the daughter: Hackett’s Estate, 44 D. & C. 593, 598. Moreover, the residuary clause was entirely ineffective and unnecessary, because the sixth and seventh paragraphs of the decedent’s will effectively disposed of all her remaining estate to her daughter. Lastly, the mere blending of real and personal estate, without a clear and indubitable intent to create a common fund and bequeath it as money, will not constitute a conversion: Davidson, Executrix, v. Bright, 267 Pa. 580, 585. In the present case we find no such clear and indubitable intent.
Passing to the contention of the physician and hospital that all of the debts, including their own, were
In Agnew’s Administratrix v. Fetterman’s Executrix, 4 Pa. 56, Chief Justice Gibson pointed out that if a lien of debts was to continue without limitation under the principle laid down by the cases hereinabove cited the trust must not be an implied one, but that it must be express, precise, and clear. He also pointed out that in Alexander v. M’Murry and in Steel v. Henry the temporary charge of debts imposed by the law was supplanted by a permanent charge imposed by the testator. In Buehler’s Heirs v. Buffington et al., 43 Pa. 278, 294, the court referred to the Alexander and Steel eases, and stated that these cases were qualified in Agnew’s Administratrix v. Fetterman’s Executrix,
In Trinity Church v. Watson et al., 50 Pa. 518, 522, 528, the court held that a general charge on real estate by devise for the payment of debts does not create a testamentary lien of unlimited duration. The court stated:
“No case brought to my notice, or of which I have any knowledge, has ever decided that a general direction to sell real estate for the payment of debts, not ascertained or identified, will extend the lien of these debts indefinitely, without suit or notice by filing a copy under the Act of 1834.”
In Mitchell’s Estate, 182 Pa. 530, it was held that in order to create a testamentary charge on real estate it must be found that such was the testator’s intention and it must be disclosed by the will itself. It must be shown, not only that the debts were made a charge upon the land by will, but also that an express trust was made for their payment; because, unless such trust were created, the lien of the debts, though made a charge upon the land by the will, would be lost by statutory limitation.
Finally, in Krick’s Estate, 342 Pa. 212, it was held that a mere direction by the testator to pay debts, accompanied by a power of sale of the real estate, does not effect a conversion, the order to pay debts adding nothing to what the law itself would have insisted upon.
It follows from the foregoing that there was no conversion of the real estate and that the debts did not constitute such a charge on the real estate as continued their lien without limitation. Inasmuch as the debts
One additional matter must be considered: The executor, in his statement of proposed distribution, proposed to pay the Sennett judgment, with interest thereon from January 15, 1942, to February 5, 1945, the latter date being one day prior to the filing of the account and statement. Where real estate is sold by an executor or administrator for the payment of debts by order of the court, interest on the debts payable from the proceeds ceases on the date of final confirmation of the sale: Roos et al. v. Fairy Silk Mills, 342 Pa. 81, 82; Carver’s Appeal, 89 Pa. 276; Kier’s Estate, 27 Pitts. L. J. 97; Ramsey’s Appeal, 4 Watts 71; Lefever’s Estate, 7 Lanc. 131. The sale in the present case was confirmed April 18, 1944; therefore, interest will not be allowed after that date.
And now, July 17, 1945, the account is confirmed and the objections to the statement of distribution are sustained. It is hereby ordered and decreed that the balance in the hands of the executor, $1,778.16, be distributed as follows:
To John Sennett, judgment no. 113, February term, 1939, entered January 14,
1939, principal $900 with interest thereon from January 15,1942, to April 18, 1944, $121.95 .................. $1,021.95
To Earl B. Sober, prothonotary, costs on said judgment 3.75
*640 To J. R. Shulenberger, judgment no. 153,
February term, 1944, entered April 5, ■ 1944, $577.95, and interest thereon from April 5,1944, to April 18, 1944, $1.25. . 579.20
To Earl B. Sober, prothonotary, costs on said judgment..................... 6.50
' To llene 0. Campbell, sole devisee under decedent’s will . . .................. 166.76
