Brolasky v. Gally's Executors

The opinion of the court was delivered, by Thompson, J. This is a clear case of a devise to executors to sell, and operated as a conversion of the realty into money from the moment of the decease of the testatrix, and thus was the descent broken. The words used are: “ And I order the same (the property real, personal and mixed) to be sold by my executrix and executor for its reasonable value, and the proceeds arising from the sale thereof shall be disposed of as hereinafter specified.” [513] There is no discretion left in the executors, and none is to be found within the four corners of the will. Indeed it is manifest that the intention of the testatrix could not be carried out by the executors without the sale, and this proves' with what intent the words were used. The intention of the testatrix in this as in other particulars is the governing rule. The clause following the words quoted do not modify their meaning, and this is evident from the whole will. They seem to have been used as directions to facilitate the power of the executors in making the sale, but they add nothing to their discretion. I incline to the argument of the defendant in error, that the words “ to dispose'of the real estate in fee simple, or for a term of years or otherwise,” are intended to meet the case of a necessity which might exist, to postpone a sale to a time at which the property might be sold for its “ reasonable value.” This would be very proper; but still the direction was to sell and distribute the proceeds. This was all that was necessary to work a conversion* The doctrine in' almost every conceivable aspect, seems well settled with us ; and amongst the many cases to be found are Allison’s Executors v. Wilson’s Executors, 13 S. & R. 330, a case very much like this, in which the lien' was disallowed as here in the'court below; also Blight v. The Bank, 10 Barr 131; Parkinson’s Appeal, 8 Casey 455; Anewalt’s Appeal, 6 Wright 414; Chew v. Nicklin, 9 Id. 84. All these cases clearly show, and more might be cited, that a positive order or direction to sell in a will works a conversion of realty into money. That appears here, and nothing to contradict it. The court below were right, therefore, in holding that the appellant had no lien, and acquired no title to Joseph Gally’s interest by the sale on execution to him. What was said about election by the heirs to take the realty, was outside of the case ; for not a single fact of which it was predicated, is to be found in the ease stated. This is our chart, and we follow it. _ I do not think it would have made any difference in the result if the facts had been stated, but it would be extra-judicial to express any very decided opinion about what is not before us. The case was rightly decided below, and the decree is affirmed.