Reed's Estate , 237 Pa. 125 ( 1912 )

Opinion by

Mr. Justice Elkin,

The first question raised by this appeal is whether the lapsed share of Nellie Reed goes under the intestate laws as real estate to the heirs of the testator, or as personal property to his next of kin. Nellie Reed predeceased the testator several months, unmarried and without issue. That the gift to her lapsed and passed under the intestate laws was expressly decided by this court in Reed’s Est., 82 Pa. 428, and, therefore, this cannot be treated as an open question. It is contended for appellants that the will worked a conversion of the real estate, and that it was not the intention of the testator to give the residuary legatees an interest in land, but that they should take the proceeds of the sale of real estate as money. There can be no doubt that this was the intention of the testator, and if no lapse had occurred, the entire estate would have been so distributed. But a lapse, not contemplated by the testator, did occur, and as to this share the will made no provision. It passed under the intestate laws, which must necessarily govern its distribution, no matter what the intention of the testator may have been as to those beneficiaries of his bounty who took under the will. As was said by this court in Reed’s Estate, supra: “This lapsed legacy (in this case two-twelfths of the residuary estate) became distributable under the intestate law, as part of the estate not disposed of by the will, when it took effect by and at the death of the testator. Of this he died intestate. His testacy was therefore of only a part of his estate.” While the intention of the testator should prevail as to all that part of the estate disposed of by will, and even may be controlling as to the manner of holding and converting the entire estate, including the lapsed share, it cannot be held to alter the course of inheritance, or the character of that part of the estate which passed under the intestate law. This seems to be the settled law of Pennsylvania. Conversion is a fiction of equity applied in proper cases in order to carry out the intention of the testator, but where the intention, or purpose, fails, the fiction will not be applied. If there be a total failure of purpose, the heir at law takes, and may not only prevent a sale, but may compel the trustee, if the estate be so held, to make a conveyance of the real estate to him. In case of a partial failure of purpose, while the heir cannot prevent the sale, he takes his share according to the course of inheritance under the intestate law as if no will had been made. The authority of Acbroyd v. Smithson, 1 Bro. C. C. 503, has made this the settled law of England for more than a century. As far back as 1823 this court adopted the same rule and it has been followed in our State from that time to the present: Wilson v. Hamilton, 9 S. & R. 424; Luffberry’s App., 125 Pa. 513; Rudy’s Est., 185 Pa. 359; Painter v. Painter, 220 Pa. 82; Thompson’s Est., 229 Pa. 542; Muderspaugh’s Est., 231 Pa. 376. In the light of these decisions there is no escape from the conclusion that the lapsed share of Nellie Reed in the real estate of her father, passed under the intestate law to the heirs of the testator, and was not distributable as personalty to his next of kin.

While the second question relates, primarily, to the distribution of the balances accounted for in the third and fourth partial accounts, the distribution under former partial accounts is incidentally involved. In other words, the widow having received more than she was entitled to in the former distributions, and the legatees and heirs less than their shares under the will and the law, can there be such an equitable distribution under present and future accounts as to give each distributee his or her proper share in the entire estate. We cannot regard this as even a doubtful question under the authority of our own cases. Where in the distribution of a partial account, a distributee does not appear, and the entire fund then for distribution is awarded to those distributees who do appear, the inequality will be corrected in a subsequent distribution of other funds belonging to the same estate, by awarding him who received nothing on the first distribution enough to make up his proportionate distributive share of both funds: Grim’s App., 109 Pa. 391. Where the next of kin are awarded an amount of void accumulations in excess of their share, and the widow is thereby deprived of her share, the inequality will be corrected by subsequently awarding her out of the principal, a sum sufficient to make good her share of the void accumulations : Grim’s Est., 147 Pa. 190. To the same effect are: Yetter’s Est., 160 Pa. 506; Landmesser’s Est., 13 Pa. Superior Ct. 467; Stahl’s Est., 25 Pa. Superior Ct. 402. There is nothing new or novel in the principle underlying these cases; It is just, reasonable and equitable. It is predicated upon the theory that in the distribution of a partial account the rights of distributees are not finally adjudicated. In an accounting by a trustee, it is recognized as an elementary principle, that it is proper to compute the share of each distributee in the entire net fund accounted for, no matter whether there be one or several accounts, and to deduct from each share all former payments. It should not be overlooked that we are dealing with the estate of the testator and the rights of the beneficiaries. Each beneficiary is entitled to a certain share of the entire estate and the amount of that share can only be definitely ascertained when all of the accounts are finally settled. All payments on account to a distributee, whether made direct by the executor, or trustee, or awarded on distribution of partial accounts, are to be deducted from his or her share when it is finally ascertained. This is what the rule of the above cited cases means and there is no reason in law or equity why it should be disturbed. The doctrine of res ad judicata in the sense urged by the learned counsel for appellants has no application to the facts of the present dase. The adjudication of a partial account simply awards distribution of the fund then in court, and is not a final determination of the rights of the parties: Leslie’s App., 63 Pa. 355; Lease v. Ensminger, 5 Pa. Superior Ct. 329. The numerous cases called to our attention by the learned counsel for appellants, and upon which they rely to ask a reversal, can be easily distinguished from the case at bar. In the present case there is no effort to surcharge the accountants, or to open former adjudications, or to raise any question now that was litigated and decided in the distribution of former partial accounts, and nothing attempted to be done here gives rise to an equitable estoppel.

Decree affirmed, costs to be paid out of the funds for distribution.