Appeal of T. Downing Lindley

Mr. Justice Faxson delivered the opinion of the court, March 19th 1883. The above appeals are from the same decree, and will be considered in the order in which they are stated. I. Appeal of T. Downing Lindley et al. Perot Lardner, whose will forms the subject of this contention, died April 29th 1881, seised of a large real estate and also personal property estimated at one million dollars. The testator derived a portion of his real estate by descent from his father, which was awarded to the Lardners, and is not the subject of dispute. Another portion of the real estate descended to the testator from his mother, and was claimed by the appellants, who are admittedly the testator’s next of kin on the mother’s side. The auditing judge awarded the funds arising from the sales of certain realty purchased by testator’s mother, and the rents of other property bought by her, to the appellants. The court below set aside the adjudication and awarded the fund to the appellees, who are the heirs at law ex parte paterna, upon the ground that the will of Perot Lardner worked a conversion of his real estate, and that the same must be distributed as money. It is conceded that if there was a conversion the appellees are entitled. We see no serious difficulty in the case beyond the fact that a large fortune is at stake. The will of Perot Lardner provides' for two distinct contingencies. The first is the event of his dying without leaving a child or children or the descendant of a child or children living at the time of his death. After giving a number of pecuniary legacies to relatives, friends and public institutions, the testator bequeaths a legacy of two hundred thousand dollars to his wife, and the rest, residue and remainder of hi's estate to his executors in trust: 1st. To invest the same and keep the same invested ; 2d. To collect the income, issues and profits thereof ; 3d. To pay all taxes, expenses and repairs; 4th. To pay the remaining income to his wife, Ellen M. Lardner, for life; and, 5th. Upon the death of his said wife “ to divide the principal of my residuary estate among such persons and in such proportions as is provided for by the intestate laws of Pennsylvania, it being my will that in the event of my dying without issue that after the death of my wife the whole of my estate shall vest in and be divided among my next of kin or heirs at law the same as though I had died intestate and unmarried.” The testator survived his wife and left no lineal descendants of any’ degree. This portion of his will therefore took effect. That his residuary estate must go to his “ next'of kin or heirs [255] at law” precisely as if he had died intestate, is too plain for argument, unless we find something-else in the will which controls it. I will not stop to discuss the proposition that the direction to invest the residue and keep the same invested indicated an intention on the part of the testator to convert his real estate. It is sufficient to say in passing that the direction to invest was applicable to the personal estate, just as the word “ repairs ” applies to and was evidently intended for his real estate. In other words, the testator directed that his personal estate should be kept invested and that his real estate should be kept in repair. But it is said the remainder of paragraph 14 of his will shows that the testator intended a conversion. This portion of paragraph 14- refers to the second contingency above referred te. It provides for the event of the testator leaving his wife and a child or children or the descendants of a child or children living at the time of his death. The contingency did not happen, and this portion of the will never took effect. It drops out of the case. It is vain to explore this alternate section of the will to ascertain what the testator intended in case of his death without leaving a wife and a child or children surviving. That he had already expressed, as clearly as language can make it. The power of sale with which the 14th paragraph of the will concludes is as follows: “ I further authorize and empower my said executors to make sale, in their discretion, of any real estate for the purposes of this trust and to make deeds to the purchaser or purchasers thereof without any liability on the part of the purchasers to see to the application of the purchase money.” This is a mere discretionary power, and under the authorities does not work a conversion: Peterson’s Appeal, 7 Norris 397; Jones v. Caldwell, 1 Outerbridge 42. •The learned court below was of opinion, however, that there was such a blending of the réal and personal estate to create a fund for the purposes of distribution as to bring the case within the rulings of Dundas’s Appeal, 14 P. F. S. 325; Page’s Estate, 25 Ibid. 87, and Roland v. Miller, 4 Outerbridge 47. Some significance was also attached to the fact of the gift of $25,000 to each son as he should attain the age of eighteen years, which said legacy was to be paid out of either the principal or income; and to the further fact that the gift to the life tenant “ which carefully enumerates the income, issues and profits but omits mention of rents.” The gift of $25,000 to each son occurs in that portion of the will which never took effect, by reason of the death of all of testator’s lineal descendants during his own life. The omission of the word “ rents ” in the gift to the life tenant has no especial significance, for the reason that “ income, issues and [256] profits ” include the rents of the real estate. The word “ issues” is an apt term to indicate the rents and profits derived from realty. N or are we able to see the applicability of the cases referred to. In Dundas’s Appeal there was a conversion in fact. No question of the effect of an unexecuted power was before the court. On the contrary, the power had been fully executed, and the main contention was whether the executors should be surchai’ged for the actual value of a house alleged to have been sold at an under-price. The most that can be predicated of that case is that a trust for sale, with a power of sale, and an execution of the power, works a conversion. Anything beyond this is dictum. We are wholly unable to extract anything from Page’s estate which favors a conversion of Perot Lardner’s real estate. If authority at all upon this question its weight would seem to be on the other side. In the recent case of Roland v. Miller, there was a discretionary power given, which, after a time, became imperative, and it was held that it must be regarded as a trust, for unless it'was executed no legatee could be paid. The legatees were given the proceeds only, not the estate or property itself. The execution- of the power was therefore compulsory in order that the object of the testator might not be defeated, and it was held there was a conversion. This distinction has been frequently recognized: Chew v. Chew, 4 Casey 17; Evans v. Chew, 21 P. F. S. 47; and see 2 Sudgen on Powers. The blending of real and personal estate by a testator in his will is not of much significance unless it clearly appears that he intended thereby to create a fund raised out of both real and personal estate, and to bequeath said fund as money. Where such a purpose is expressed and a power of sale given to carry it into effect, there is some room for holding that a conversion was intended. Nothing of the kind exists in this case. As before stated, the testator owned both real and personal estate at the time of his death. The manifest intent of his will is that his personal estate shall be kept invested, the real estate shall be kept in repair; the income, issues and profits be paid to his widow during her life, and at her death the whole of the residue of his estate “ shall vest in and be divided among my next of kin or heirs at law the same as though I had died intestate and unmarried.” We cannot find within the four corners of Perot Lardner’s will any satisfactory evidence of an intention to convert his real estate and to distribute it as money. On the contrary, the intention is manifest and emphatically expressed that in the contingency which has happened his property, both real and personal, shall go as if he had died intestate. This gives to the [257] heirs ex parta materna the real estate and the rents thereof, which descended to Perot Lardner through his mother. II. Appeal oe William S. Perot et al. This appeal has been practically disposed of by what has been said in Lindley’s appeal. In the court below the executor accounted for the rents of certain real 'estate belonging to the testator, of which he had taken possession and charge, which had descended under the intestate laws from the testator’s mother. The appellants are heirs ex parte materna and the auditing judge awarded them the rents. Upon exceptions by the appellees, who were the next of kin on the side of the father, this adjudication was reversed, and the rents awarded to them. This was a logical result of the ruling of the court below upon the question of a conversion. Under our view of the law, it is manifest the rents must follow the real estate out of which it issued. This appeal is sustained. III. Appeal oe Joseph S. Perot et al. This appeal presents a different question. It having been settled by the preceding appeals that the will of Perot Lardner did not work a conversion of his real estate, and that the proceeds of the real estate, which descended ex parte materna must be distributed to such of the heirs of said Perot Lardner as are of the blood of the first purchaser, the question now to be decided is whether Francis Perot and William S. Perot, who were the only children of Elliston Perot (a deceased great-great uncle of the testator) take exclusively, or in conjunction with the appellants who are the children of the deceased brothers and sisters of Francis and William S. Perot. The latter were living at the death of the testator, and claim in their own right; the appellants claim by representation through their deceased parents. The precise question is whether the appellants can take by representation. . It' is manifest they could not take under the Act of 1833, which provides: “ That there shall be no representation admitted amongst collaterals after brothers’ and sisters’ children.” We regard it as too plain for argument that the brothers and sisters referred to.in the Act are the brothers and sisters of the intestate. This construction, would exclude the appellants as they are not children of a brother or sister of the testator. The appellants contend, however, that even if not within the Act of 1833, they are entitled to take under the 2d section of the Act, of 27th April 1855, P. L. 368,, which provides, “ That among collaterals where by existing laws entitled to inherit, the real and personal estate shall descend, and be distributed among the grandchildren of brothers and sisters, and [258] the children of uncles and aunts by representation, such descendants taking equally among them such share as their parent would have taken if living.” The effect of this Act is to introduce a new class of collateral heirs — those who were one generation too remote to take under the Act of 1833 : Lane’s Appeal, 4 Casey 487. Under the Act of 1833, the children of brothers and sisters can take under the Act of 1855, the grandchildren of brothers and sisters, and the children of uncles and aunts, can take by representation. But here again, the brothers and sisters must be the brothers and sisters of the intestate. The appellants do not come within the description of the Act of 1855. They are neither the grandchildren of a brother or sister of Perot Lardner, nor children of his uncle or aunt. They are not grandchildren of a brother or sister of the common ancestor, Eliiston Perot, nor children of an uncle or aunt of the latter. We need not elaborate this point. We are of opinion that the appellants are not entitled to take either under the Act of 1833 or that of 1855, and their appeal must be dismissed. The appeals of T. Downing Bindley et al., No. 149, of January Term 1883, and of William S. Perot et ah, No. 142, of January Term 1883, are sustained, and as to them the decree is reversed at the costs of the respective appellees. The appeal of Joseph S. Perot et ah, No. 150, January Term 1883, is dismissed, and as to them the decree is affirmed at the costs of the appellants. The adjudication of the auditing judge is affirmed, and it is ordered that distribution be made in accordance therewith.