Beeson v. Breading , 1875 Pa. LEXIS 35 ( 1875 )

Mr. Justice Sharswood

delivered the opinion of the court,

We are of opinion that upon the true construction of the will of Rachel Skiles there was no power given to her executors to sell the out lot on the National Road or any part of it in any event. She makes a specific devise of that lot unto Jacob Beeson, Jonathan D. Beeson and Henry Beeson, to them and their heirs forever. She then immediately adds, “ all the balance of my property, both real and personal, I direct to be sold by my executors as soon after my decease as they may deem best for the interest of my estate, and the proceeds, after paying my just debts and necessary expenses, I divide as follows.” She then proceeds to give several pecuniary legacies, and a general residuary bequest. “ All the rest and residue of my estate I give and bequeath unto Henry H. Beeson, Jacob B. Miller and Jonathan D. Spring, to be equally divided.” It is to be observed that it was not a mere power to sell but an absolute direction, and worked an immediate conversion. She meant that all the balance of the property (except the out lot) should be converted into money and distributed as she directed, in pecuniary legacies, with the residuary bequest. It cannot be inferred that at the time of the execution of the will she had any intention to convert the out lot into money. If she had not then such an intention, how can such a power arise from subsequent events ? An express revocation of the devise by a subsequent codicil would not work such an effect. It would require a new power, either clearly expressed or necessarily implied. It is very much like the case of Downer v. Downer, 9 Watts 60, where, after a specific devise of a lot charged with legacies, which the devisee refused to accept, the testator directed his executors to sell his whole real estate not otherwise disposed of in his will. It was held clearly that the power of the executor to sell did not include the lot, though in the event which had occurred it became a part of his real estate not otherwise disposed of. It had reverted to his estate just as is supposed in the case before us. But the charges upon it were not affected, and it was held therefore that the only mode of proceeding was in the Orphans’ Court to enforce the charge by a sale. It results from this construction of the will that Clark Breading, the plaintiff below, derived no title from the sale by the executors, and therefore

Judgment reversed, and now judgment on the reserved points for the defendant below.