Goodwyn v. Cassels , 207 Ala. 482 ( 1922 )

Cardinal rules for the construction of wills need not be repeated. Smaw v. Young, 109 Ala. 528, 20 So. 370; Duncan v. De Yampert, 182 Ala. 528, 62 So. 673; Ralls v. Johnson,200 Ala. 178, 75 So. 926; Gunter v. Townsend, 202 Ala. 160,79 So. 644; Jemison v. Brasher, 202 Ala. 578, 81 So. 80; Lyons v. Bradley, 168 Ala. 505, 53 So. 244; Crawford v. Carlisle, 206 Ala. 379, 89 So. 565.

Generally speaking, words employed in a will are of two classes, peremptory or precatory; of direct and positive terms, as distinguished from entreaty, request, desire, wish, or recommendation. Within the latter class fall these words of Mr. Young's will:

"I prefer that they [trustees] do not buy any real estate,"

— and in the former are the words:

"Said trustees shall immediately after my decease take possession of all my said property and estate and convert the same into cash. * * * Said trustees are hereby authorized and empowered to sell any of my property either at public or private sale * * * and to the reinvestment of such proceeds the purchaser shall not be bound to look. No part of my estate shall be disposed of by the said trustees except for the purpose of reinvestment."

It should be stated that testator evinced no intent to create a trust "for the purpose of accumulation only" (22 Am. Eng. Encyc. of Law [2d Ed.] p. 727, § VIII; Code, 1907, § 3410; Pearce v. Pearce, 199 Ala. 491, 74 So. 952; Campbell v. Weakley, 121 Ala. 64, 25 So. 694), but a trust for the objects and subjects of testator's bounty.

The rule of sections 3410, 3417, of the Code has no application to the title to the lot in question or its alienation by said trustees, since the purchase price paid by said trustees after testator's death was personal property at the date of the death of testator; wills operating, not from the date of execution, but that of the death of the testator (Caldwell v. Caldwell, 204 Ala. 161, 85 So. 493; Crawford v. Carlisle, supra; Gray's Perpetuities, § 231; 5 M. A. L. § 243); or, if in lands, was required to be converted "into cash" by express direction given in section 2, item I, of Mr. Young's will. It was, by the doctrine of equitable conversion, personal property.

Under the maxim that equity regards as done that which ought to be done (Craig v. Leslie, 3 Wheat. 563, 578, 4 L. Ed. 460; 21 C. J. § 191, p. 201), it is established that, where a testator directs the lands or other properties to be sold and converted into money on his death, there takes place what is known as an equitable conversion; and, so far as concerns the will of testator as to the land of his estate held at his death or thereafter purchased or acquired by his trustee as a part of the trust estate, it becomes converted, under this doctrine, into money, and is governed by the laws relating to personal property rather than that relating to land (Hibler v. Oliver,193 Ala. 369, 375, 69 So. 477; Flomerfelt v. Siglin,155 Ala. 633, 639, 47 So. 106, 130 Am. St. Rep. 67; Taylor v. Crook, 136 Ala. 354, 377, 34 So. 905, 96 Am. St. Rep. 26; Allen v. Watts, 98 Ala. 384, 388, 11 So. 646; Moore v. Campbell, 102 Ala. 445, 14 So. 780; Johnson v. Holifield,82 Ala. 123, 2 So. 753; High v. Worley, 33 Ala. 196). See, also, McKleroy v. Musgrove, 203 Ala. 603, 615, 84 So. 280; Tatum v. C. B. T. Co., 185 Ala. 249, 255, 64 So. 561; Bispham's Principles of Equity. (6th Ed.) § 307 et seq.; 3 Pom. Eq. Jur. (3d Ed.) §§ 1160-1162. If an imperative provision in a will directs that testator's real estate be sold, the doctrine of equitable conversion is not inapplicable merely because the same is not to be accomplished until some specified future time. Massey v. Modawell, 73 Ala. 421; High v. Worley, supra; 1 Tiffany's Real Prop. (2d Ed.) §§ 118, 120, 316. This doctrine of conversion is applicable in applying the rule against perpetuities. Gray's Rule Against Perpetuities, §§ 264, 265, 266.

It is provided in section 2 of item I of the will:

"It is my will and desire that said trustees shall immediately after my decease take possession of all my said property and estate and convert the same into cash. They shall then proceed as rapidly as practicable to loan the said estate on real estate mortgages in the South preferably improved city real estate, and in no case shall the loan exceed sixty per cent. of the value of the real estate loaned on."

The direction for conversion of the property of the estate "into cash" (money — 1 Words and Phrases) immediately after testator's death and the taking possession of the properties and affairs of the estate by the trustees is imperative; there was an equitable conversion, and the devise is that of money. Cropley v. Cooper, 19 Wall. 167, 22 L. Ed. 109, 113; Neilson v. Lagow, 53 U.S. (12 How.) 98, 107, 13 L. Ed. 909, 913; Benham v. Taylor, 46 U.S. (5 How.) 233, 12 L. Ed. 130, 147. The doctrine had no application to the facts in Lyons v. Bradley, supra, and Crawford v. Carlisle, supra.

The will declared imperatively that "no part of my estate shall be disposed of by the said trustees except for the purpose of reinvestment," and conferred on the trustees the right to sell any part of the trust estate for such purpose, and implies a power of sale of property acquired by reinvestment. Perry on Trusts (5th Ed.) § 764 et seq.; Scottish-American Mortg. Co. v. Massie, 94 Tex. 339,60 S.W. 544; First Nat. Bank v. Lee (Ky.) 66 S.W. 413.

In the execution of the trust in accordance with the intention of the testator, manifested by his will, the legal title to the "home for my [his] wife and children living together," when acquired, vested and remained in the trustees, subject to the use or estate provided by testator. This was necessary to enable the trustees at all times during the administration to execute the trust declared. As to the vacant lot described in the bill and purchased with moneys of the estate, the will was mandatory to sell, and, of necessity, to convey in fee simple absolute, when not to be used for the erection thereon of the dwelling for testator's wife and children, testator's properties being required by the will to be immediately converted into cash, and to do this it was necessary that the trustees convey "a legal estate" that was vested in the trustees, or "commensurate with the interest which they must convey in execution of the trust." Neilson v. Lagow, supra, 53 U.S. (12 How.) 107, 13 L. Ed. 913. Such was the testamentary direction and necessity as to the lands not used as a home for the "wife and children living together." The power to purchase real estate for a home for testator's wife and children living together was broad enough to buy or build such a home. The purpose for which the lot was originally purchased did not change or affect the power and duties of the trustees to convert same into money by a sale when it was not used as a home.

Pursuant to the foregoing view, the conveyance to the lot or land made the subject of the bill, from grantors Annie A. Roquemore and husband to the trustees, was to the trustees on such terms as to indicate the particular property was purchased for the purpose of the trust (Gulf Red Cedar Co. v. O'Neal,131 Ala. 117, 30 So. 466, 90 Am. St. Rep. 22; McRae's Adm'r v. McDonald, 57 Ala. 423); the habendum et tenendum clause of that conveyance being:

"To have and to hold the aforegoing premises to the said grantees, their successors and assigns, forever, as joint trustees, under the conditions and trusts set forth in the last will and testament of Thomas Sloan Young, duly probated in Savannah, and especially that provision authorizing the purchase of a home for his wife, Cora C. Young, and their children, with power to sell the same at their pleasure at public or private sale and without the order of any court for the purpose of said will."

Construing the provisions of Mr. Young's will in respects as it affects the title to the unimproved lot located within the state of Alabama, we conclude the subject by saying that the trustees under the will have such title and interest to the lot described in the bill and the right to convey to the purchaser such a title to the same as they held.

It may be well to say, in reply to argument of counsel, that, in the ascertainment of the respective interests of legatees, the rule of the common law against perpetuities has application to a bequest of personal property, and has not been violated by testator. Crawford v. Carlisle, supra; Lyons v. Bradley, supra.

It is unnecessary to observe that appropriate action may be taken by the trustees to comply, or, on their failure, by the widow and children desiring to live with her to compel compliance, with the provisions of the will as to providing a home. Had not such authority been given in section 2 of item 1 of the will for providing a home for the "wife and children living together" from the corpus of the estate, it was contained in the provisions of section 3, disposing of the net income of the estate, viz.:

"If she [the wife] should not remarry or until her marriage if she should remarry, said trustees shall apply all of the net interest and income, or so much thereof as may be necessary, to the support and maintenance of my said wife, and the support and maintenance and education of her child or children by me begotten," etc.

See Ralls v. Johnson, supra; Pearce v. Pearce, 199 Ala. 491,74 So. 952; Coleman v. Camp, 36 Ala. 159.

The decree of the circuit court in equity is affirmed.

Affirmed.

ANDERSON, C. J., and McCLELLAN and SOMERVILLE, JJ., concur.