Seeds v. Burk

Opinion by Mr. Chief Justice Sterrett, In Cadbury v. Duval, 10 Pa. 265, it was ruled that a purchaser, under an absolute testamentary direction to sell land, was bound to see -to the payment of scheduled debts because he had notice; but that he was not bound to see to the payment of general debts because other means for the satisfaction of that class of claims were-provided by statute. In contemplation of law, conversion takes place immediately on testator’s death, and claims which were not then liens on his land attach to the [289] proceeds as personal estate and become payable as in ordinary course of administration. But it is insisted that discretionary powers of sale stand on a different footing; that because conversion takes place from the date of execution of the power, general debts have in the meantime acquired a lien on the deceased debtor s land which can only be divested in the mode provided by the statute. No case precisely in point has been cited, but analogous eases (Taylor v. Haskell, 178 Pa. 106; Drayton’s Appeal, 61 Pa. 172) show and it is practically conceded, that this position is wrell taken. This much premised leads up to the question involved in this case, whether or not the power contained in the will of Miss Mcllvain was absolute or discretionary. Analysis will certainly show that it was not absolute. There is no express direction, — peremptory in character, — that the executor shall in any and every event sell the land; and it seems just as clear that there is no necessary implication. The provision for payment of debts is no more than the law would have implied. It does not follow that sale of the land will be necessary. The personal estate is the primary fund for payment. The presumption, arising under the act of 1882 which requires an allegation of insufficiency and the exhibition of an inventory as conditions precedent to the grant of an order of sale, is that the personal estate is sufficient; and there is every reason for the application of this presumption here. There is not only no proof of insufficiency, but the allegation of the filing of an inventory of personal estate, of which no account appears to have been filed nor distribution made, far in excess of the debts, remains uncontradicted. In any event, only so much of the land as may be necessary to make up the insufficiency can be sold, and the burden is on those representing the estate to show how much, which they have failed to do. So far as appears, there was no necessity for sale even assuming the power related to payment of debts. The will shows on its face that testatrix herself had no thought of insufficiency ; for the specific direction “ to invest the proceeds of every such sale or exchange in such real or personal security or securities,” as the trustee “may deem proper and right,” excludes its use for other purposes. Nor does the creation or form of the residuary disposition sustain the theory of absolute power. It too is what would [290] have been implied without a will. It embraces no more than the “surplusage” which the law sets apart to heirs and next of kin. The general expression “ divide and pay,” per se includes, and the context shows it was intended to include, real and personal estate. Land, as well as personalty, may be the subject of division in.kind. Following the detailed direction “to pay over,” which prima facie relates to personalty, there is an independent provision “ respecting ” real estate which clearly individualizes it, and leaves the question of its conversion solely to the trustee’s discretion. The expression “ authorize and empower” in itself implies discretion: Hill on Trustees, 485. If in his judgment it appears that it is not “ for the best advantage ” of the estate, the trustee may refuse to sell; there is no authority that can coerce him; and the land may therefore never be sold. The question of conversion lies wholly in the discretion of the trustee. It follows from what has been said that the plaintiffs acquired á lien on their debtor’s land, and that the ’ judgment de terris entered by the court below must be affirmed. Judgment affirmed.