Gourley v. . Campbell

*172 Miller, J. The main question to be determined upon this appeal is, whether the testator intended an absolute conversion of his real estate into money, or what is called in law a conversion out and out, and a distribution of the same as personal property among the devisees named in the will. There are no explicit directions in the will which show clearly such an intention, and if it is to be considered as existing it must be derived from the construction to be placed upon certain provisions of the will under the rules of law applicable to such cases. While it is evident that the testator intended to provide for the support and maintenance of his wife and children, and the education of the latter, it is not clear, by any means, that he designed a conversion of his real estate into money, and a final distribution of the same as personal property. There are many features of the case which are utterly at war with such a theory, and it is not apparent that such a design actually existed. The clause which provides, that “ my executors shall place the proceeds thereof, and all my property, both real and personal, at interest on bond and mortgage, or otherwise, as in their judgment they may deem best,” is followed by a direction that the “proceeds, rent, income or interest shall be employed” for the support and maintenance of the testator’s wife and children, and the education of said children. The use of the word “ rent,” in connection with the other terms employed, indicates that the testator expected and intended that a portion of his estate should remain or be invested in real estate, and that an investment in land would be within the meaning of the will. So, also, while the words “ or otherwise ” may be construed to refer to the mode of investment, they are also susceptible of another interpretation, and it may well be urged that they relate to the discretion of the executors to sell or not, according to their best judgment. Independent of the difficulties referred to, an insuperable obstacle to a construction which converts the whole real estate into money, is the concluding portion of the will, by which the testator devises and bequeaths to his children by name all his “ estate, both real and personal, of all kinds whatsoever, to be *173 equally divided between them, share and share alike, upon the event of the death of their mother.” If the testator had designed that all his estate should be converted into money he would not have made a disposition of his real estate or of all kinds of property. These were his last words, and the last clause of a will is to be deemed an indication of his ultimate intention, unless it is plain from the entire will that a different Intention existed, which is not apparent from the prior provisions of the will in question. The authorities cited to sustain a contrary construction from the one stated present entirely different characteristics from the case now considered. Even if it may be considered that the clause of the will in which the testator uses the words “ real estate ” in the devise to his children contains no words of inheritance as the law stood when it was executed, yet the terms employed are too strong to resist the inference that the testator never intended that the real estate should be converted into money without any qualification whatever. The construction placed upon the testator’s will leads to the conclusion that he made no such disposition of his real estate as to constitute an out and out conversion of the same into money. The authorities fully sustain this position. In White v. Howard. (46 N. Y., 162) Judge Geovee said: “ To constitute a conversion of real estate into personal property, in the absence of an actual sale, it must be made the duty of the executors to sell in any event. A mere discretionary power to sell produces no such result.” In Wright v. Trustees of Methodist Church (1 Hoff. Ch. R., 218) the vice-chancellor held, that if the disposition is made to depend upon the discretion of the trustee of the power the will is not imperative and does not convert the estate. There is no express direction in the will to sell, and it is only by implication that the power to sell can be upheld; and, if it did exist at all, it was qualified to the exercise of their best judgment, both as to sale and the nature of the investment of the proceeds thereof. These provisions are, at least, too indefinite and *174 uncertain to authorize the conclusion that the executors were bound to sell in any event. In fact, the purpose of the testator was to provide for the support and education of his children and maintenance of his wife. The personal estate was ample for that purpose, and no necessity existed for a sale of the real estate; to this extent, therefore, the purpose has failed. The rule in equity is well settled that when a conversion of real into' personal estate is ordered for particular purposes, and those purposes fail, the land retains its original character and descends to the heirs. In Chitty v. Parker (2 Ves., Jr., 271) the testatrix directed her real estate to be sold and all her estate to be converted into money for the purposes of her will. The will was satisfied without touching her real estate, and it was held that there was no equity for the next of lrin against the heir, and that the heir takes all that which is not for a defined and specific purpose given by the will. The direction to sell was peremptory, which is not the case here ; but, in both cases, the puipose has failed and the devise has been satisfied. (See, also, Slocum v. Slocum, 4 Ed. Ch., 613; Jackson v. Jansen, 6 J. R., 73; Sharpsteen v. Tillou, 3 Cow., 651; Hawley v. James, 5 Paige, 447; Robinson v. Taylor, 2 Brown’s Ch. Cas., 595.) It cannot be claimed that these cases are inapplicable, as the purpose of the conversion was to enable the executors to sell, if they deemed it best, and it was necessary to support and educate the family of the testator; all of these have been fully answered without any sale, and hence the land has not been converted and descends to the heirs at law. There are other views which tend in the same direction and lead to the same conclusion. As, however, those already presented are sufficient to uphold the construction put upon the testator’s will, it is not necessary to discuss them. We have been referred to numerous cases which sustain the principle, that, when the intent is manifest to convert into money, the whole estate is to be regarded as personal from the testator’s death; but all of them are decisions where a sale *175 was ordered for the purposes of a division. Where the devisees were living, the division could not be made without a sale, and the intention was entirely clear; they are not, therefore, in point, and do not affect the question presented in the case at bar. As it is manifest that the court below were in error, the judgment must he reversed, and as a question of law only arises which cannot be altered upon a new trial, judgment should be ordered for the defendants. This is also a case where costs are in the discretion of the court, and the questions involved being difficult and intricate, we think the costs should be paid out of the property. * All concur. Folger, J., absent. Judgment reversed and judgment for defendants. Footnotes [*] The judgment was subsequently corrected as to costs by making it without costs as to either party against the other.