Henszey's Estate , 220 Pa. 212 ( 1908 )

Opinion by

Mr. Justice Potter,

It appears from the history of this case, that Margaret A. Henszey died testate, July 5, 1894. She gave her estate to trustees for certain purposes, and directed her trustees upon the death of a daughter, to divide the principal of her estate into four equal parts, and to grant, convey and pay one of said fourth parts unto her son, George O. Henszey, his heirs, executors, administrators and assigns; and made similar gifts of the other parts to other persons. George O. Henszey died May 18, 1901, leaving a widow, Eose, and six children. He devised his property as though it were to pass under the intestate law, Ellen Henszey, the daughter of testatrix, died December 3,1903, and at the time of her death, the fund heré for distribution was real estate. The interest of Eose O. Henszey, wife of George O. Henszey, vested in her at the death of her husband, and it was of course real estate at that time.

The contention of appellant in the court below, was that there was a conversion under the terms of testator’s will. This was the only question considered in the adjudication and in the opinion of Judge Axdekson, except that in the last paragraph' of the opinion it is said: “ At the argument the point was made by one of the exceptants that the actual sale under the power would, of course, work a conversion. This is true, but has no application to the question at issue. The interest of Eose O. Henszey having vested in her as real estate, will not be changed into personalty by a sale subsequent to such vesting.”

Appellant’s counsel concedes that under the will there is no equitable conversion, and says that the case does not involve that question, but “ a question of the legal effect of an actual conversion.” It is therefore unnecessary to discuss the authorities on the subject of equitable conversion. The decision of the court below, that there was no equitable conversion under the will is admittedly correct and sustained by all the cases. The sale of the real estate in this case was not obligatory, but was made at the discretion of the trustees.

In Cooper’s Estate, 206 Pa. 628, we held that where executors sold land under a discretionary power more than two years after the death of the testator, his debts not of record having lost their lien, were not payable out of the fund. Justice Bbown said (p. 632): “ The conversion of the testator’s farm took place, therefore, when, in the exercise of the mere discretion reposed in the executor, to be exercised only on a certain condition, it was sold on September 21, 1900 — more than two years after the death of the testator.” So in the case at bar, the conversion did not take place until the actual sale by the trustees under their discretionary power. But at that time, the law had already determined the respective interests of Mrs. Henszey and her children in the land sold, and those interests could not be altered by the act of the trustees. To the same effect as the' case last cited are Solliday’s Estate, 175 Pa. 114, and Anewalt’s Appeal, 42 Pa. 414.

The law does not favor conversion where the result will be to change the course of inheritance, and in such case it will be presumed no farther than is necessary to carry out the intent of the testator: Darlington v. Darlington, 160 Pa. 65. If in a qualified direction by a testator to sell real estate, the sale is prevented by the qualification, until the course of descent is changed by death, it will descend as land, and not as money : Henry v. McCloskey, 9 Watts, 145.

The principle set forth in Wilson v. Hamilton, 9 S. & R. 424, is also applicable in this case, and that is, where a testator orders land to be sold, and certain legacies paid out of the-proceeds, the surplus money after the payment of the legacies, goes to the heir at law, and'not to the executor, as it would were it considered the residue of personal estate. This principle is also recognized in Raleigh’s Estate, 206 Pa. 451.

We think it may properly be considered a sound rule, that a sale made by trustees, for the convenient management of the trust, and not under positive directions in the will, does not alter the course of distribution. The assignments of error are overruled and the decree of the orphans’ court is affirmed.