Reed v. Mellor

Opinion, Mr. Justice Clark: It is conceded on all hands that by the terms of the last rvill and testament of Charles C. Sullivan, deceased, there was an equitable conversion of the realty into personalty. The legal title was in the executor, not by any mere implication, but by the express words of the will, and the direction to sell was positive and absolute; indeed, the declared and only purpose of the devise was that the executor should “convertthe same as soon as practicable into money,” and “ pay the proceeds ” to his wife, Susan C. Sullivan, “ to be held by her as guardian of the children, and to use it in such judicious manner as she may deem most beneficial to herself and said children.” As the land was directed to be converted into money and the widow was entitled to the “proceeds” only, it is plain that neither the widow nor the children at the outset had any interest in the land which would support an ejectment. It is equally plain that as the executor had undoubted power to sell, he might sell to anybody. The widow had as much right to buy as the executor had to sell, and we can see no good reason why a deed from the executor would not invest her with the legal title. ■ To this it is objected, that the executor by the will was directed to sell the lands as he might deem it most beneficial to the interest of the estate, “on terms of four equal annual payments, with the usual interest,” whereas by his deed he conveyed to the widow for a nominal consideration only. But it will be observed that the sale was in consideration of the sum of one dollar, and that “ by the last will and testament of the said Charles C. Sullivan, deceased, she is the sole devisee,” etc. The property was placed in the same hands which were entitled to receive the proceeds. The land was not given away, it was accepted by Mrs. Sullivan instead of the money; not as land, however, but as money. The land, having been directed to be converted into personalty, must be regarded and treated as personalty: it was certainly not in the widow’s power by any act or agreement of hers to [651] convert it into realty: Willing v. Peters, 7 Pa. 287; Evans’s App., 63 Pa. 183. In the widow’s hands, as respects the trust, it was personalty still, and the children had as yet acquired no right which would support an ejectment. If the executor had sold the land to Mrs. Sullivan at its actual value and received the money, she would have been entitled to receive it back again, and after going through this routine the condition of the parties would not he different in any respect from what it is now. This mode of executing the power was not perhaps in strict compliance with the directions of the will, but the same strictness has never been required in the execution of a power to sell, as is required in the execution of a power to appoint. Hacker’s App., 121 Pa. 192, is therefore not in point. If MeCandless had conveyed to Mrs. Sullivan for full value paid in hand, no one would doubt the valid execution of the power; and practically, this was just what was done, for as we have said, the condition of the parties would not have been changed if that had been done. The executor may have supposed, and doubtless did suppose, this mode of sale “most to the interest of the estate,” whilst the widow, who was solely entitled to the money, doubtless deemed this use of it “a judicious” one, and “most beneficial to herself and children.” And if they, acting in good faith, agreed as to this, there was no one to take any exception to the transaction. At a public sale of this land by the executor, no one would question the widow’s right to buy, representing her interest and the interest of the children, in order to prevent a sacrifice of the property; and, if she might buy at a public sale, there is no good reason why she might not take the title, for a like purpose, at a private sale. A purchase of.the property, under such circumstances, could rvork no conversion, so as to prevent the widow from disposing of it by sale and conveyance in due form: Billington’s App., 3 R. 47; Oeslager v. Fisher, 2 Pa. 467; Johnson v. Bliss, 11 W. N. 293. The legal title was thus vested in Mrs. Sullivan, who held it subject to the trust, as to which, however, it was personalty only. The children having no interest in the land as such, the mother was free to dispose of it as she chose, accounting to the children, when the time for accounting came, for the proceeds or for what it was reasonably worth. It follows that the deed [652] to her son was a conveyance of the legal title to him, and, whether the consideration expressed therein was to be treated as an advancement, in the subsequent distribution of the trust estate, or was a simple gratuity on her part, is of little consequence. Taggart, the mortgagee, had a right to suppose that the transaction was just as it appeared upon the face of the deed. There was nothing to put him upon inquiry, and it is not pretended that he had any notice of the nature of the transaction between Mrs. Sullivan and her son, or of the consider-, ation which passed between them. On the contrary, Challes A. Sullivan entered into the exclusive possession of the lot in 1873; erected thereon a dwelling-house, barn and other out buildings, of the value of $10,000 and upwards. In the fall of 1874 he moved into this house and kept it as his own, receiving the conveyance from his mother in 1877. At this time all of the children were, and for three years had been, of full age, and had been residing in the town of Butler. The possession and improvement of the property were wholly consistent with the exclusive ownership of Charles A. Sullivan under the deed. It is said that the parties in interest might elect to forego a sale under the provisions of the will and take the land in lieu of the proceeds. It is sufficient to say in reply to this that the parties in interest did not do so. This they could do only by agreement or by some decisive act. For nearly eight years after the execution of the mortgage to Taggart, the conduct of the children was consistent only with the exclusive ownership of Charles A. Sullivan. It was not until September 9, 1885, that any word was spoken or any act done indicating a desire of the heirs to take the land instead of the money, and then the property had passed out of their control. Although we might not be willing to adopt all the reasoning of the learned judge of the court below, he was certainly right in the result. The judgment is affirmed.