Horner's Appeal

The opinion of the court was delivered, January 7th 1868, by Agnew, J. It may be conceded that the will of William Erwin converted his real estate into personalty, so- far as it relates to the interests of his children in the proceeds of sale directed to be made at the death or- marriage of his widow : Allison’s Executors v. Wilson, 13 S. & R. 333; Morrow v. Brenizer, 2 Rawle 185 ; Brolaskey v. Gally’s Executors, 1 P. F. Smith 509. But this conversion is a doctrine of equity to effectuate the purposes of the testator : Craig v. Leslie, 3 Wheat. 563. The principle is, that equity regarding the substance and not the mere forms of things, considers that which is directed’ or agreed to be done, as if it were done. This being the principle, it would be against equity, and contrary to its own maxim which looks at the substance of things, to view the’ conveyance of the administrator of William Erwin, Jr., contrary'to-its-manifest intention— which'was to convey whatever interest-the-intestate had-in the estate of his father the testator. Wiliam Erwin, Jr., owed debts ; these debts were a lien upon his estate real and personal. Whether his interest in the real estate, which his father, the testator, directed to be sold, were real or personal, it was bound for the payment of his debts. It was the intention of his administrator to dispose of this interest for that purpose. He became-the actor, and moved the court towards the' end he would himself accomplish. It was not an adversary proceeding in which he wras acted upon by others who must proceed at their own peril; but he himself became the petitioner, and his prayer was that the interest of his intestate might be sold to pay the debts. If we consult his intention, therefore, what matters it that-he mistook the nature of the property, called it real estate,«.and invoked the Orphans’ Court to supply that defect in his own power which the supposed nature of the estate denoted. Nevertheless, he was moving, though supported as he thought by the strong arm of the Orphans’ Court, to the same end to which his own powers were adequate, to wit, the sale of his intestate’s interest in the testator’s estate ; and in consummation of this purpose he conveyed to the purchaser such interest and share as were devised or bequeathed to him the said William Erwin, Jr., by the last will and testament of William Erwin, Sr. This being the clear intention and purpose of the administrator, and having himself, aside from the authority of the Orphans’ Court, the power to sell this interest as personalty, and the proceeding not being adversary, but at his own instance, and intended to effectuate the very end he had in view; equity, looking at the substance and true intent of the [409] transaction, steps in and treats his act as efficient to the purpose. His deed is therefore an equitable assignment at least, if it may not indeed be an actual assignment at law, of the personal .interest of the intestate in the proceeds of the testator’s realty when it should be converted ; and this the more so, when we consider that in fact there was no conversion, the real estate yet standing as the existing source from which the interest in the proceeds was to spring, and was viewed as personalty only through the medium of equity. The cases of Hays v. Mayer, 8 Watts 212, Rice v. Bixler, 1 W. & S. 445, and Costen’s Appeal, 1 Harris 292, fully support this position. Hess v. Short, 7 Barr 231, does not militate against it. That case was decided on the ground that the executor not having executed the power of sale, and the contingency not having happened on which the power was to be executed, the effect of the judgment would he to fix the executor prematurely for the money; and he was therefore not liable as garnishee in an execution-attachment. Agreeing with the auditor and the court below as to the effect of the administrator’s deed, the decree of the Orphans’ Court is affirmed and the appeal dismissed at the costs of the appellants.