Ross v. Roberts

James, J. No objection was made, on the argument, to the finding of facts. The question discussed, and the real question on the appeal, is the character of the estate or interest possessed by Mrs. Hawley at the time of her death, under the ninth clause of the will. In the construction of wills, it is the duty of the court, if possible, to ascertain from the instrument itself, the intention of the testator, and then to give effect to such intention, unless in conflict with some rule or principle of law. In this case the intention is so clearly expressed and transparent that there is little cause for construction. It first gives to each of his ten children, or their descendants, a money legacy, in the whole equal to the entire of his estate, Avhich should be left at the death of his Avife; second, to his udfe for life, the possession and use of his entire estate for her comfort and sup [321] port as she might require; third, suspends the payment of all legacies until one year after his death; fourth, gives his executors a power of sale, authorizing them to convert his property into money for division within one year after the decease of his wife; fifth, names his sons, John and Andrew, executors. Under this will, no estate vested in the executors as such; it gave them simply a power of sale. The widow took an estate in possession for life; the remainder passed to the heirs of the testator, subject to the power of sale. On the death of Mary, after the testator, and before the mother, her interest in the remainder passed to her brothers and sisters. The execution of the power must be held as intended to be absolute ; not otherwise could the scheme or intention of the testator be carried out; and, although there has been no sale as yet, there being no discretion vested in the executors, even though they have refused to qualify, or been removed, the trust is not thereby defeated or lost; the legacies, on the death of testator, became vested interests in the legatees, and in the contingency arising in this case, the trust vested in this court, and the duty devolved upon it to appoint some person to execute it. 1 R. S. 730, § 68. It is most certain the testator did not intend the parceling of the residuum of his estate among the legatees named; he desired it to be sold, converted into money, and distributed as directed. To allow such intention to be defeated by the neglect or refusal of the trustees named to act, would be unjust to the beneficiaries. • It is clearly manifest that the testator intended to stamp the character of personalty upon his estate; to make whatever was left at the death of his wife, money; and it is claimed that under the doctrine of equitable conversion it became such on the death of the testator. Marsh v. Wheeler, 2 Edw. Ch. 155-159; Stagg v. Jackson, 1 N. Y. 206. It was urged that this rule of equitable conversion could not be invoked, because it did not begin to operate until after the death of the wife; that when the conversion of real estate is directed for particular purposes, it remains real estate until the time arrives for it to be converted as directed. This is doubtless so. It was said in Savage v. Burnham, 17 N. Y. 561-569, that “the doctrine of equitable conversion, according to which real estate is deemed to be changed into personal, directed and provided for in a will or. other instrument, must be taken with the qualification that the [322] change does not take place in theory until the period arrives or event occurs, when the conversion ought to he made. When that period arrives the estate will be deemed to undergo the change directed by the will, whether then actually sold or not.” Therefore, at the time of the death of the daughter Mary the doctrine of equitable conversion-could not be invoked, as the time had not arrived. Consequently her interest in remainder passed to her heirs at law, subject to the trust and power given by the will, to be divested, when the proper time arrived, by actual sale or equitable conversion. It was said in Moncrief v. Ross, 50 N. Y. 436, that by the power of sale " the land was equitably converted into money from the time the sale was directed to be made, and will be so regarded thereafter in equity for all purposes? Bogert v. Hertell, 4 Hill, 492; Manice v. Manice, 43 N. Y. 303; White v. Howard, 46 id. 144. So that, although the wife of Hawley, at her death, held an estate in remainder in the land, which could not then be converted into personalty, either by the doctrine of equitable conversion or actual sale, her death at that period did not destroy the legacy or change its character. It was still a money legacy, to be distributed as her personal estate, in the same manner as if a sale or conversion had taken place before her death. Bunce v. Vandergrift, 8 Paige, 37; Jarm. on Wills, 525; Wheeldale v. Partridge, 5 Ves. 388. In this view it follows that the disposition made of the case by the special term was correct. Judgment is affirmed, with costs to the plaintiff, and also to the defendant Hawley, against the appellant, Andrew Roberts, personally. Judgment affirrned.