Fahnestock v. Fahnestock

Opinion by Mr. Justice McCollum, This is an appeal from a decree dismissing the bill of Benjamin S. Fahnestock for the partition of certain real estate situate in the Second ward of the city of Pittsburgh, of which his father, Benjamin L. Fahnestock, who died, testate, on the third of January, 1888, was seized in fee. It was alleged in the answer that by the provisions of the will of Benjamin L. Fahnestock there was an equitable conversion of his real estate into personalty. The ease was set for hearing on bill and answer, which together contained such portions of the will as were deemed necessary by the parties to a proper understanding and decision of the question raised. It is not contended that the words, “ I hereby empower and authorize my executors to sell all my real and personal property, at private, or public sale, and make and execute deeds in fee simple for my real estate,” standing by themselves operate as a conversion, but it was thought by the learned judge of the court below, and it is insisted by the appellees here, that these words, taken in connection with the other provisions of the will, exhibit a clear intention and purpose on the part of the testator that his real and personal property shall be converted into money for investment, and the collection and disbursement of interest or income, in accordance with his directions therein, and further, that it is not possible to execute the will according to its terms without such conversion of his real estate. A mere naked power to sell real estate does not operate as a conversion of it into personalty, but such power coupled with a direction or command to sell will have that effect. If a testator authorizes his executors to sell his real estate and to execute and deliver to the purchasers deeds in fee simple, of the same, as in this ease, and it is clear from the face of his will that it was his intention that the power so conferred by him should be exercised, it will be construed as a direction to sell, and operate as an equitable conversion. If in addition to this clear intention of the testator it plainly appears that effect cannot be given to material provisions of the will without the exercise of this power, the conclusion is irresistible that a conversion is as effectually accomplished by the will, and the duties of the executors under it are the same, as if it contained a positive direction to sell. While these principles are not disputed [62] by the appellant, he contends that they are not applicable to this case; that the authority given to the executors to sell was for the purpose of paying the debts of the testator, and as these' have' been paid or satisfactorily arranged, the power no longer exists. We cannot agree that the authority given to the executors to sell the real estate was limited in accordance with this contention. It is apparent on the face of the will that the testator intended his property, real and personal, should be converted into money, for distribution, investment and the collection and payment of interest or income, as he had directed. It is. true he provided in his will that the beneficiaries named therein might become purchasers, in the manner prescribed by him,. of portions of his property, and receive from his executors deeds in fee simple of the real estate, and proper transfers of the personal property, so purchased by them. But this was., a privilege which they have not exercised, and we merely refer to it now as showing that the testator did not intend they' should take title to any portion of his real or personal property, except as purchasers of it from his executors. It is not possible to execute certain provisions in the third and fourth clauses of the will without a conversion of the real estate as well as the personal property into money. In the one third of his real and personal estate given to his widow during her life, his grandchildren, William E. Fahnestock and Ida May Fahnestock, have, under the third clause of the will, a one twelfth part which his executors are required to invest in good mortgages, real estate or other safe securities, and to pay over to the said William E. Fahnestock and Ida May Fahnestock the interest or income thereof quarterly, share and share alike, during their natural lives. In the residue of his real and per-, sonal estate, his son Charles H. Fahnestock is given' by the fourth clause of the will a one twenty-fourth part to be invested by the executors in mortgages or other safe securities, the interest of which is to. be applied by them to his support, in case the United States government shall cease ■ to care for or support him; and William E. Fahnestock and Ida May Fahnestock have a one twelfth part, to be invested, and the interest or income of it to be paid to them, by the executors, in the manner and during the period provided for in the third clause al ready referred to. [63] . As there can be no final settlement of the estate in accord-: aneé with the will until the power conferred upon the executor for the sale of the real and personal property is exercised, there should be no further delay in the execution- of it. This power .was not destroyed by the default of the executors, it survived their failure to exercise it within the four years allowed by the sixth clause for a final settlement of the estate. During this period they had some discretion as to the time of its exercise, but they have none now. The specifications of error are not sustained. Décree affirmed and appeal dismissed at the costs of the appellant.