Page's Estate

The opinion of the court was delivered, January 19th 1874, by

Agnew, C. J.

Mrs. Page, the intestate, being domiciled in Philadelphia, the register of her domicil had jurisdiction over her estate. This would include the estate which came to her under the will of her father, William Wurts, of New Jersey, unless taken out of the course of administration by the limitations of his will. As the donor of the estate, he had power to limit it to others on her death, and thus to cause it to be disposed of as his own estate, and in that event it might be drawn into administration in New Jersey. But the property bequeathed to her was not to go over under the terms of the will, and the court in New Jersey decreed payment to the ancillary administrator of Mrs. Page, who has brought the fund into this state, to be administered under the principal letters issued here. The jurisdiction of the Orphans’ Court cannot be doubted.

This brings us to the question of devolution. It is claimed by Mrs. Page’s husband, who is also her administrator, under his alleged marital rights, while the appellants claim three-fourths of it for her children by right of succession under the laws of Pennsylvania. It is supposed on part of Mr. Page, that the estate being bequeathed to Mrs. Page for her sole arid separate use, it is therefore taken out of the ordinary laws of succession and returns to her husband as at common law by survivorship. This is a mistake. The Act'of 1848, securing to married women their property, destroyed the marital rights of her husband in her estate at common law, and therefore, when the suspension of Mrs. Page’s power over the estate, caused by the sole and separate use, ceased at her death, the husband had no marital rights of property to which he could return. The doctrine of Ins. Co. v. Foster, 11 Casey 134; and Wright v. Brown, 8 Wright 224, is misapplied. It is not doubted that the Act of 1848 does not unfetter the estate of a feme covert, settled to her sole and separate use, so as to confer upon her a power not given to her by the donor, to convey away her estate. On this point Lancaster v. Dolan, 1 Rawle 231, is still the law. Hence, where no power is given to sell or convey her estate, she is still restrained by the will of the donor of the estate. But this suspension of her power does not destroy her entire and undivided ownership) of all her personalty under the terms of the Act of 1848 : that act extends to all kinds of property, and left nothing to the husband. He is no longer the owner of her chattels or her choses, and on her death they go into administration, and not to him by survivorship. Hence the cases cited as to the suspension created by the sole and separate use, and the return of the husband to his marital rights, when the suspension has ceased, are not precedents, in this state, where the husband -has no marital right at common law to which he can return. ' The error in the argument is in supposing that the creation of an estate for the sole and separate use of the wife is an .act of favor to the husband. But this is an illogical inference. . The intent of the donor to take the estate out of the control of the husband,-is adverse to the husband. It would be a most unfriendly-interpretation of the Act of 1848, divesting the husband of all right of property by marriage, to say it did not mean. to divest his right, because the donor himself had refused to the husband any power to control her estate. The husband being separated from it, both at law and by the will of the testator,. Mrs. Page’s estaté can gp' only-by succession to her husband and .children under the laws governing her intestacy.

The question- of the conversion of the real estate • in Pennsylvania, devised- to Mr. Page, must depend on the will of Wm. Wurts, there being no actual conversion by the trustees under his will in her lifetime. It therefore descended as real estate, unless conversion was wrought by the will itself,

It has been decided in New Jersey that a conversion arises under the terms of .Wm. Wurts’s will. We dissent from this, with much unwillingness and some'hesitation. - We agree that a conversion may arise, without express terms, when it is clear that a 1 testator meant to create a fund raised out of'both real and personal estate, and to bequeath this fund in money alone. But it', seems to us the error in the argument' is. in assuming the only-fact from which conversion can fairly be inferred, to wit, an absolute intent to create a consolidated' fund out of both real and personal estate, to be distributed in money. As we read the- will, the first item is simply a.devise and bequest of all the testator’s real and personal, estate in trust for his children. The direction following the devise to invest the proceeds of his estate “ after settlement,- and-Ms'just debts are paid,” for the benefit of his children, applies only to the personalty, the fund for the payment of debts, and the proper subject of a settlement. If the word, “estate,” used in' creating that fund, means his entire estate, real as well as personal, we might conclude' the testator intended a conversion. It is not only-used in connection with terms restraining its meaning to person-' alty, but it is also interpreted by the language and' intention of the fourth item of the will. That item confers only a discretionary authority to sell the real estate when the trustees and executors deem it advisable, a power which might never be exercised. Then'the testator directs the proceeds of such sales to be received and invested and held by them upon the same trusts, and-,to and-for the same purposes as therein before expressed and set forth. Now if the conversion took place under the first item .of the will the proceeds.of the real estate ipso facto became a part of the fund to be distributed, and it was unnecessary .to provide for it a second time in the fourth item. The whole frame of the will, and especially the fourth item, would seem to us to indicaté no more than a discretionary power of sale, which would work conversion only when a sale should be made. Hence, on the death of the testator, the real estate passed to his children as real estate, by equitable title, and not as personalty. Mrs. Page having died before actual conversion under the discretionary power contained in the fourth item, -her equitable estate descended to her children as realty. When conversion took place the title to the realty was in them.

The decree of the Court .of Chancery at the. suit of the trustees in New Jersey did not decide any question of distribution, as to so much of the fund there as belonged to Mrs. Page. Its effect was to authorize the payment of the money to Mr. Page, the ancillary administrator,, leaving the question of distribution to be settled in the forum of Mrs. Page’s domicil.

The decree of the Orphans’ Court is therefore reversed, with costs to' be paid by the appellee, and it is ordered that a distribution of the balance in the hands of the administrator of Mrs. Isabella G. Page be made to her surviving husband and children in equal shares, accord- ' ing to law, and the record is ordered to be remitted to the Orphans’ Court to make distribution accordingly.