Estate of Schmid

Opinión bv Mr. Justice Green, In the case of Brockley’s Appeal, 4 Atl. Rep. 210, not reported in the State Reports, we certainly did hold that an estate precisely like this was an estate for life only. The words of [272] the will in that case were, “ I give and bequeath unto my dear wife Konigunda, all my estate real and personal, and wheresoever found at the time of my death, giving her full power and authority to sell the whole or any part of my said real estate and execute deed or deeds therefor; and in case any of my said estate be left after the death of my said wife I order it to be divided as follows.” There the widow sold the real estate to one for $1,500 and took a lease from him for life at a nominal rent of one cent per annum. The $1,500 was never used by the widow, and the grantee still owed it to her at her death. He was also her administrator and upon the settlement of his account as such, he was surcharged with this amount as a part of the estate left after the death of the widow, and therefore belonging to the children. Upon exceptions filed the court below sustained the auditor’s report, and on appeal of this court we sustained the decree in a brief per curiam. We said, “ although Mrs. Brockley did sell the real estate under a power given in the will of her husband, yet it is found as a fact that she did not use any part of the proceeds. She therefore held them as she had held the land and, in the language of the will, they were ‘left’ as a part of the estate of her husband.” It will be observed that in that case the widow did exercise in her lifetime the express power given to her by the will, “ to sell the whole or any part of my said real estate and execute deed or deeds therefor.” Yet inasmuch as the proceeds of the sale were unused by the widow we decided that she held them in the same way that she held the land, and gave them to the children as a part of the estate of the testator devised to them by his will. In the present case the widow still continued in tire possession and use of the real estate devised to her by her husband, up to the time of her death. It was therefore a part of his estate in her hands at the time of her death, unused and unsold, and was clearly subject to the operation of the husband’s will under the decision above cited. The words of his will on this subject are, “ And if any of the same be left after her death I order it to be divided amongst my children share and share alike.” This is the precise contingency contemplated and provided for by the will, and we know of no reason why the clear testamentary intent and purpose of the testator should be disregarded. There is no rule of law which requires it to be set aside. Her attempt to dispose of it by will cannot defeat the plain intent [273] of the testator and, as her will was practically the same as his in designating the persons who should ultimately take the property, there is no real conflict between the two wills on that subject. There will be no profit in entering into an examination of the numerous authorities cited in the argument. None of them really conflicts with the ruling in Brockley’s Appeal and in this; and Follweiler’s Appeal, 102 Pa. 581, is almost precisely the same as these, and so also is Zimmerman v. Anders, 6 W. & S. 218. There are important differences in language and circumstances in the cases in which it is held that the wife took a fee where the devise was similar to that in the present case, but it is not necessary to review them in detail. It is enough to know that the cardinal rule of the interpretation of wills by the intent of the testator, will be strictly followed and enforced by our ruling of the present contention. Regarding the property as the real estate of the husband, the solution of the practical question involved in this contention is very simple. The property had been sold, and the several sales had been confirmed by the orphans’ court but the deeds had not been delivered, on the day of Emma' Dunlap’s death. Under all the authorities no conversion was worked, and her interest passed as real estate and not personal: Scott’s Est., 137 Pa. 454; Greenough v. Small, 137 Pa. 136 ; Overdeer v. Updegraff, 69 Pa. 118; Wentz’s Appeal, 126 Pa. 541, and many other cases. Said Clabk, J., in Greenough v. Small, “ It is well settled that an orphans’ court sale does not divest the title of the heirs until after confirmation thereof and conveyance delivered under the order of the court. . . . The sale, even after confirmation, does not divest the title of the heirs of the decedent, for it remains in the power of the court until a deed has been executed and delivered. Until then the heirs’ right to maintain ejectment, even against the purchaser, has not gone. . . . Until then no conversion takes place, and if the heir of the decedent dies, even subsequently to the confirmation of the report of sale but before the deed, his interest descends as land and not as money.” Further discussion is unnecessary. The assignments of error are dismissed. Decree affirmed and appeal dismissed at the cost of the appellant.'