Peterson's Appeal , 1879 Pa. LEXIS 64 ( 1879 )

Mr. Justice Trunkey

delivered the opinion of the court, February 10th 1879.

Did the testator intend to attach to the devises and bequests to the issue of his children a condition precedent that they should arrive at lawful age ? The answer is in the terms of the will. Interest and income of both real and personal estate of the share of each child are payable during his or her life, and at death, without leaving lawful issue, such share shall lapse and fall back into his estate and bo divided among such of his children as may then be living- and the issue of such as may be dead, in the way directed in reference to their particular shares. In case any of his children “shall die, leaving lawful issue, such issue, if under lawful age, shall bo entitled to receive the interest and income of their parents’ share equally among them, if one, solely, if more than one, in equal parts. And as they severally attain such lawful age, they are to receive and be paid their share and portion of the principal or capital fund of which their parent had received the interest and income. * * * And those of my said children leaving lawful issue, of lawful age,such issue shall receive and be paid the said principal or capital fund of which their parent had received the interest and income.” Full directions are given for ascertainment and settlement of the portions of his estate, which may from time to time become due and payable on the decease of any of his children. In every part of the will, bearing on the subject, the corpus of each child’s share is treated as given to the lawful issue, and not a phrase indicates that any such issue, under age, is not on an equality with those of full age. The difference is simply this, that the one of majority receives his portion immediately, while payment to the one in his minority-is postponed, he receiving the interest and income in the meantime. In respect to the issue of his children, the gift of the interest and income is not distinct from the principal. Hence it need not now be said whether the doctrine in Spencer v. Wilson, Law Rep. 16 Eq. C. 501, where the income was the subject of one gift and the capital of another, will be adopted in Pennsylvania. Under John Peterson’s will, that the lawful issue of his children take a vested estate, though in their minority when the parent dies, we consider not doubtful, but if it were, the doubt should be resolved against a contingent estafe, for it is a rule of interpretation that, in doubtful cases, estates are to be held vested rather than contingent.

Does the will work an equitable conversion of the real estate? This is the only remaining inquiry, for it is not alleged that there has been conversion by a sale. In order to arrive at the value of a share at the time of the decease of any child, the testator directs that' appraisers be appointed to “ make a just and fair valuation of all the real and personal estate,” and upon such share being so ascertained, any of his said children shall be at liberty to take the part necessary to be sold to raise a fund to pay off the share of a child arriving at full agé, the first choice given to the males in order of seniority and next to the females in like order, and if none of them will accept, then the same shall he sold by the trustees, “ and with such funds to pay and satisfy the person entitled to such share, his or her portion thereof.”

In another part of the will a discretionary powér is given to the trustees, subject to consent of William Spooner, to sell the whole or any part of the estate, and to invest the proceeds in other real estate or personal securities, as they may deem best.. The appellees admit that this discretionary power is no conversion. They also concede that conversion is a question of intention, to be determined by the terms of the will; and contend that the terms of this will “ decisively fix upon the land the quality of money.” But, if this be so, what mean the various directions to be observed before the trustees can sell any part to raise money to pay off a share ? Appraisers shall be chosen by the trustees and surviving children, if they can agree, but if they cannot agree, the appraisers shall be appointed by the court, to make a just and fair valuation of all the real estate, as well as personal, and ascertain the value of the share or portion of the deceased child. Upon due record of the valuation, or confirmation thereof by the court, the children may take the land, and should they so elect, the trustees can make no sale. Their power to sell depends upon the refusal of all the children to accept the share of the land at the valuation. “ And the like proceedings shall be had as often as it may be required to ascertain and pay off such'share or shares.” Here are contingencies which may prevent a sale of any part of the real estate, during the life estates given to the children. The will works no conversion of land into money. Unless there be an imperative direction to sell, irrespective of contingencies and independent of discretion, conversion will not take place until the sale is actually made: Anewalt’s Appeal, 6 Wright 414; Henry v. McCloskey, 9 Watts 145.

Moreover, this will, in whole and in its parts, shows that the testator contemplated that his real estate should remain in the trustees until those in remainder become entitled to possession. He gave them power to lease and collect rents. He gave them discretionary power, conditioned that William Spooner first assent, to repair, improve and build upon any of his lands, and defray the expensed out of his estate, and also to sell and re-invest in other real estate to be held for the same uses. He repeatedly directs payment of the “interest and income.” lie wills that if any child die without lawful issue, his share in the real and personal estate shall lapse. He made provision for adjustment of the share of a child who should die leaving issue. Wo discover no intention to convert. Many provisions of this will are vain, if the real estate is fixed with the quality of money.

We are impelled to the conclusion, that so much of the decree as rests upon the basis that Carrie May Peterson’s interest in the real estate was converted, is erroneous.

Decree reversed, and record ordered to be remitted for further proceedings.