Leiper's Appeal

The opinion of the court was delivered by

Thompson, J.

The sale of the land out of which this controversy has arisen, by Irvine, the trustee, with the assent of Leiper, the cestui que trust, undoubtedly brought the land within the rule in equity which requires it to be treated as personal estate for the purpose of regulating the succession to it. That it was such a conversion, so far as the widow and heirs were concerned, is clearly ruled in Rangler’s Appeal, 3 Barr 377; Foster v. Harris, 10 Id. 457; Rose v. Jessup, 7 Harris 281; Longwell v. Bentley, 11 Id. 99; Leiper’s Executors v. Irvine, 2 Casey 54.

After the death of the decedent, the purchase-money fell due, and, had it been collected, no one will doubt, but that the widow would have been entitled to her third of it, she having elected to take under the intestate laws, and not under the will of her husband. It was not collected, however, but, by arrangement between the trustee and vendees, with the assent of Mrs. Leiper, the time for. payment was extended, with a stipulation that, if not paid at the expiration thereof, the contract was to be forfeited, and the land to revert to the owners. There was a failure of payment, and the consequence was a rescission of the contract. Was this a reconversion, so as to change the rights of the widow and heirs? The auditor and court below thought not, and in this they are fully sustained by the cases cited. In Rose v. Jessup, the very point arose and was ruled, Lowrie, J., saying that, the testator having “ sold real estate by valid agreements, the sums due thereon were part of his personal estate, and on his death his widow’s interest therein became immediately vested.” “It was the duty of the trustees to proceed on the agreement and collect the money for those having a right to claim it. If such pursuit should result in recovering bach the land, they were bound to account for that, as a substitute for the money, and subject to the same trusts.” In substance, the same thing was said in Leiper’s Executors v. Irvine, 2 Casey 54.

There is no room for the distinction, I apprehend, between a recovery back of the land in pursuit of the money, and taking it back as the result of the forfeiture of the contract for non-payment of the purchase-money at the time fixed. Strictly speaking, this provision was a remedy to enforce payment of the purchase-money, and was, in substance, an agreement to yield up the land in satisfaction of the contract, in lieu of the money, if that was not forthcoming. In the case last cited, Lewis, C. J., said, “if they” (the widow and heirs), “had aright to the proceeds” of the contract for the sale of the lands, which he had immediately before asserted, “ they had, of course, a right to take the land in lieu of the money with the assent of the vendees.” This is so directly in point, that we need not farther discuss this branch of the ease.

Nor is there anything whatever in the ease, as has been suggested, which raises any implication, other than that the land was taken in lieu of the purchase-money. This being so, the right of the widow in it is just what it would have been if money and not land had been received. On the resale she was therefore entitled to the one-third of the purchase-money, and consequently to the one-third of the proceeds of the certificates of stock of the “McKean Land and Improvement Company.” These views 'cover all the assignments of error, and in none of them do we find anything to correct.

Decree of the Orphans’ Court affirmed.