McClarren's Estate , 238 Pa. 220 ( 1913 )

Opinion by

Mr. Justice Mestrezat,

In Severn’s Estate, 211 Pa. 65, 68, it is said: “We, therefore, have in the will an authority given to the executrix to sell and a direction to divide the proceeds of the sale in equal shares among the three legatees. In order to carry out the provisions of the will and make that distribution of the proceeds of the property, a sale of the real estate becomes imperative and is an absolute necessity. This, as appears from the authorities cited above, meets the requirements of our cases and operates as an equitable conversion.”

Applying this doctrine, sustained by all the cases, to the case in hand, it is clear that the will of P. F. Mc-Clarren worked a conversion of all his real estate. It is manifest that it was the testator’s intention that his two sons should receive the proceeds of the sale of both pieces of real estate, and not the land itself. He devised the homestead to his wife for life, and then directs “that the same be sold by my administrator, at private or public sale, and that the proceeds arising therefrom be equally divided between my two sons share and share alike after her death.” Here are two of the essential requisites of an equitable conversion: a positive direction to sell, and an absolute necessity to sell in order to execute the will. As to the other part of his real estate, known as the “McClarren Plan of Lots,” the will provides as follows: “As to the residue of moneys from the sale of my real estate, other than that allotted to my wife’s occupation and use, I direct it to be divided in equal shares between my two sons, George K. and Warren T., or in case of their decease, then to their children.” This is a positive direction to divide the proceeds of and not the real estate itself between the two sons, and while there is no express direction to sell, there is an absolute necessity to sell to accomplish the purpose of the testator; and that works a conversion: Fahnestock v. Fahnestock, 152 Pa. 56. But there is another clause in the will which not only discloses an intention on the part of the testator that his real estate shall he sold for the purposes of distribution, but also empowers his personal representative to make the sale. It is subsequent to the provisions directing the proceeds of the land to be divided between his sons and is as follows : “I hereby empower my said administrator to sell and' convey by deed or deeds my real estate in accordance with the foregoing.” The power of sale contained in this provision applies to both pieces of real estate, and read in connection with the item of the will directing the division of the proceeds of the plan of lots operates as a conversion of that part of the testator’s land: Roland v. Miller, 100 Pa. 47.

The appellant concedes that if there was a conversion of the real estate under the terms of the will, and we so hold, there was a reconversion, but he and the appellee disagree as to the date of the reconversion. The appellant contends that it occurred on April 2, 1902, the date of the execution of the release and discharge of the executor, or when the legatees joined in the execution of certain deeds, and that as his judgment was entered on October 18, 1902, it was the first lien and should be paid out of the proceeds of the sale of the real estate. The appellee claims and the court below found that reconversion took place as to the plan of lots in June, 1905, and as to the real estate held by the widow for life it took place after her death in December, 1907. It was accordingly held by the learned trial court that the appellant’s judgment having been entered prior to the reconversion it was not a lien on the real estate and was postponed to the lien of the judgments entered subsequent to the reconversion.

We think it clear that the release executed and delivered to the executor by the parties entitled under the will was not an act by them disclosing an intention to reconvert the real estate. The appellant misconceives the purpose as well as the effect of the release. The executor had filed his account of the administration of the personal estate showing a balance in his hands for distribution. The release waived the appointment of an auditor, agreed to distribution, acknowledged the receipt of the amount due from the personal estate, and released and discharged the executor, “with the same force and effect as if the said balance had been distributed by the Orphans’ Court of Armstrong County.” The purpose of the release, as is apparent, was simply to save the time and expense of a distribution of the personalty by the Orphans’ Court. It did not relate to or affect the real estate, nor did it release the executor from his duty to sell the real estate or show an intention on the part of the legatees to accept the land in place of the proceeds of a sale.

The execution of the deeds to Lockhart, Duff and McElfresh by the legatees was not an act of reconversion. They were sales by the decedent and the deeds were executed by the executor to carry out thp testator’s contracts. The widow and legatees joined in executing the deeds, as found by the auditor and the court, to save the trouble and expense of a proceeding in court for specific performance. The lots having been sold by the testator, his legatees through the executor, were entitled to the purchase money and not to the real estate.

The learned court below properly found that the first indication by the legatees to take the plan of lots as land was the execution and delivery of a deed to a purchaser of one of the lots in June, 1905. A few days later they executed and delivered a deed for another lot. These were acts on the part of the legatees clearly disclosing an intention to reconvert and fixing the date of reconversion. As to the part of the real estate devised to the wife for life, there was nothing to indicate an intention to reconvert until after her death when the legatees took possession and dealt with it as real estate. The action of the court helow on this branch of the case is sustained by the recent decision in Brandon v. McKinney, 233 Pa. 481.

The elaborate opinions of the learned court below •make unnecessary any further discussion of the points involved in the case.

The decree is affirmed.