Laird's Appeal

Mr. Justice Mercur

delivered the opinion of the court, November 5th 1877.

Francis Laird, by his last will and testament, directed that after the death of his wife, all his estate should be appraised and sold, lie further directed that if any of his sons thought proper to take the farm at the appraisement he should have the privilege of doing so, on paying the other heirs their respective shares, and that all the money arising from the sale be equally divided among all his children, share and share alike. He died leaving sons and daughters. The rule is too well settled, to need the citation of authorities, that an express and explicit direction by the will, to sell the real estate of the testator and divide the proceeds, works a conversion of it into personalty on his death. In this case there was an express direction to sell. The fact that it further permitted one of his sons, at his option, to take it at the valuation to be made, did not change the effect of the direction to sell. Whether or not a son acquired it, it was nevertheless a sale, and the one taking it became a purchaser. Until that period of time it continued personalty.

The only other question we deem necessary to consider is whether William It. Johnson died “without issue then living.” Eliza M. Johnson devised the property in question, in trust for her two sons, Francis L. and William R., but provided in case either of them died within the period of twenty-one years from her decease, without issue then living, the whole should go to the survivor and his heirs. The will further provided, that in case both of her said sons should die within twenty-one years from her decease, without issue then living, then devise over to other persons. Francis died within less than five years after the death of his mother, without issue. William R. died afterwards, but within twrenty-one years after his mother’s death. He left a widow, then enoeints, who in less than two months thereafter gave birth to a child.

It is unnecessary to cite authorities to prove that a child in ventre sa mere, is in law bom for all purposes of inheritance. This is an acknowledged principle of English law. Under our statute it can inherit in like manner as if born in the lifetime of the intestate. The language “then living,” manifestly refers to the time of the death of the son. Hence, it follows that William R. died leaving “issue then living,” and the devise took full effect.

Decree affirmed.