Roland v. Miller

Mr. Justice Trunkey

delivered the opinion of the court, April 17th 1882.

The testatrix directs that all her “ personal estate shall be divided equally among her children and heirs-at-law.” In a subsequent item she makes the same disposition of the proceeds from any sale or sales, rent or rents, of her real estate. The real estate, as realty, is not devised; but the executors are authorized to lease the whole or any part for a term of fifteen years, and shall not be compelled by her heirs to sell any real estate, so leased, until the expiration of the term. Sales of real estate ax-e prohibited for ten years after the decease of the testatrix, unless the executors deem it advantageous or advisable to sell the whole or any part, in which case they are authorized and empowex-ed so to do, within said ten or fifteen years.

It never is presumed that a testator intexided to die intestate as to any part of his estate, if a contraxy intent can be fairly deduced from the language of his will. The natural axid reasonable intendment of this will is, that the realty shall be sold and the proceeds be equally divided among the legatees. Within a limited time the executors have unlimited discretionary power to sell, after that time they are bound to sell. A provision that the executors shall not be compelled to sell by the “heirs” until the expiration of the stipulated term, implies that then they may be compelled. In this will the word heirs means legatees. The power vested in the executors, discretionary for a certain time, thereafter is unconditional, not dependent on discretion or contingencies, nor upon the consent or agreement of any person, and if they neglect or refuse to exercise it, they may be compelled to perform their duty by legal process at the instance of any legatee. When a legatee invokes process of the court to enforce the execution of a positive direction to the executors to sell, the proceeds of the sale pass under the will as money. The will converts the realty into personalty ; not the action of the heirs.

At the argument it was urged that this case is ruled by Page’s Estate, 75 Pa. St. 87. There, the entire estate was vested-in trustees, the personalty to be held upon certain trusts, and the executors in the fourth item of the will were clothed with a discretionary power to sell any part of the real estate, the proceeds of such sales to be held upon the same trusts. It was held that although conversion may arise, without express terms, where it is clear that the testator meant to create a fund out of both real and personal estate and bequeath it as money, yet the whole frame of the will, especially the fourth item, indicated no more than a discretionary power to sell any part of the , realty. Here, unless the testatrix died intestate as to the realty, it must be sold to the end that the proceeds be divided among the legatees. The whole frame of the will shows intendment to dispose of the entire estate, the conversion of the realty, and a positive direction to sell after a defined period. Conversion is imperatively required to give the will any effect as to the real estate.

Judgment affirmed.