Holmes's Appeal , 1867 Pa. LEXIS 27 ( 1867 )

The opinion of the court was delivered, by

Thompson, J.

I have always regarded the Act of 1853, “ Relating to the sale and conveyance of real estate,” as a beneficial enactment, and, being remedial in its character, to be expounded liberally. It certainly affords the means of unfettering titles to real estate, and clearing them from the trammels of contingent and executory interests, so that it may be held and enjoyed in safety by the purchasers. So, by it, unproductive and unimproved property of minors, and others not sui juris, to the extent of whatever their interest may be, without changing its ultimate destination, may be converted into reasonable productiveness, at least to the extent of the ordinary rates of interest on the money substituted for the land; and sales may be made whether the fund raised be 'needed for maintenance and education or not. Carefully executed, the law may be, and is, productive of many good and desirable results.

In the case before us, we have the simple question whether the real estate of William J. Holmes, a minor, deceased, which descended to him from his father, and was sold by order of court in his lifetime under the Act of 1853, was a conversion of it into personalty, or whether the fund substituted retained the descendible quality of the estate sold. If the former (personalty), then the appellant, the mother, would be entitled to it absolutely ; if the latter, she would be entitled to the interest for life: Act of 1833, § 3, Brightly’s Dig. 563, pl. 15.

On this point the act speaks plainly. In the 6th section it is provided that, “ The purchase-money * * * * *' shall in all respects be substituted for the real estate sold * * * * * as regards the enjoyment and ownership thereof, after the payment of liens, and shall be held for, or applied to, the use and benefit of the same persons and for the same estate, and interest present or future, vested, contingent or executory, as the estate sold * *- * •* * had been held; * * * * * and those entitled to a present interest in such real estate, shall receive the interest of the proceeds or rents thereof, unless expressly directed to accumulate.”

And again, in the second proviso to the 7th section, the language is, “ that no purchase or sale by authority of this act shall change the course of descent, or transmission of any property changed in its nature, by virtue thereof as respects persons who are not of competent ability to dispose of it.” This provision is general, although it appears in a section relating principally to the powers of trustees, guardians, committees, married women and corporations. Strictly it is not a proviso to anything preceding it; it is an independent provision, which, by usage in our legislation, is often introduced by way of proviso. It is not possible to disregard these provisions in the act, and declare that notwithstanding the conversion of the minor’s estate was complete under the act in his lifetime and at his death, it passed as personalty. The act does not mean this. The sale was not made for the purpose of raising money for him. Before making ■ the order, the court were satisfied that the change from land to money substituted for the land, w'ould be best for his interest, and it was that which moved the court to make the order. We must therefore hold that this change did not change the character in which the substitute is to pass to those entitled. It must pass as land: Greenawalt’s Appeal, 1 Wright 95. So thought the auditor and court.

It seems to me, the last clause in the second proviso to the 7th section, quoted above, is misunderstood by the learned counsel, if I understand them. They seem to read it as applying to the party claiming the descent, while it is quite manifest it only applies, in a case like this at least, to the party whose property has been changed by the sale. In other words, as Mrs. Holmes was competent to dispose of the substitute for the land, it seems to be thought that that part of the proviso has no application to the case. It is quite certain, however, that this is incorrect; its application is to the son whose estate was sold while he was a minor and incompetent to dispose of it. Had he been of age, he might have disposed of the proceeds as money and not land.

We are not disposed, at this time, to decide more than is necessary for this case, or to attempt to resolve all the difficulties, mostly prospective, suggested by the able counsel for the appellant, and especially so, as the appellees have not favored us with any answer or research on the other side. No doubt the difficulties alluded to will all be resolved in due time and in their appropriate place.

The entire argument was devoted to the point we have principally discussed, and the specific error supposed to be embraced by the 2d exception, has not been shown, and we have failed to perceive it in our own investigations. The 3d exception is general, and we are not required to notice it. We see nothing wrong in the conclusion of the learned auditor, and of course nothing wrong in the court in confirming his report

Decree affirmed at the costs of the appellant.