Sullivan v. Kieffer

Opinion, Mr. Chief Justice Gordon : Allowing the counsel for the plaintiff in error to state their own ease, and it is as follows : “ This action was brought by the only surviving child, entitled to take, of William B. Sullivan, the testator named in the History of the Case, to recover from the terre-tenant the principal, sum charged on the land of the testator as the share of his widow, in lieu of dower.” From this statement, read in connection with the will, it is clear that the plaintiff had no case at all, and that the court properly directed a verdict for the defendant. “ I give and bequeath,” is the languages of the will, “ the income of the remaining one fourth of my estate to my beloved wife Sarah, during her natural life.” “ I will and bequeath that after the decease of my said wife that the said one fourth part of my estate, the income of which was bequeathed to her, go to my son William,” etc. The testator further directs, that his executors shall, as soon as they conveniently can after his decease, “ sell and dispose of all my personal and real estate to such person or persons, and for such price or prices as may reasonably he gotten for the same,” conferring upon them at the same time the power to make deeds and conveyances for the said property when so «sold as directed. ISTow the devise of the one fourth was of the whole estaie, whether real or personal, for and during the widow’s life, and, without more, she would have taken a life estate in the said one fourth of the land, and the remainder would pass at her death to William. On this, however, the plaintiff does not and cannot insist, for she refused to take under the will, and in consequence retained her statutory dower, which being; merely a life estate was necessarily extinguished at her death, and could go over to no one. How then this devise to Sarah Sullivan could by any possibility be and remain a charge on the testator’s land, after slio had renounced, is to us incomprehensible. But even had she not renounced, it is certain that the testator did not intend to charge this devise on the realty, and this because, had ho so [142] intended, he would not have imperatively directed his executors to convert his whole estate into money. There is no condition annexed to the direction to sell: “I do order and direct my executors hereafter named shall.....sell and dispose of all my personal and real estate.” Hence, it is clear that by the terms of the will there was a conversion; the whole estate became personalty, and as such the executors were bound to dispose of it. What, then, remains is this : when the executors sold to William A. Leiser, the grantor of the defendant, they, so far as the will and its devises were concerned, sold the unincumbered fee ; but, as the widow had renounced, and retained her statutory dower, Leiser took subject to her life estate in the one third of the premises, which life estate expired at her death. " We have not adverted to the agreement between Dr. Marr and Leiser, for it in no wise concerns the issue. Marr agreed that the widow’s dower should be deducted from the last payment coming to him, but that was a matter between themselves, with which the estate of Sullivan had nothing to do, and by which it could not be affected. On the other hand, the executors, Henderson and Candor, for the full consideration of six thousand three hundred and fifty dollars, by a deed in fee and without condition of any kind, conveyed, as by the will they were empowered to do, the land to Leiser. The judgment is affirmed.