Schoen's Estate

Opinion by Mr. Justice Kephart, The sole question in this appeal is whether there was a conversion of realty into personalty, whereby the widow took an absolute estate in all the property. By the will of Charles T. Schoen, his wife was to receive “such portion of my estate and in such manner as she would be entitled to receive under the intestate laws had I died intestate.” The court below found there was not sufficient personalty to meet subsequent bequests, hence there was an implied conversion, arising from an absolute necessity to sell to execute the will; and, further, there was a fund created from a blending of the real and personal property bequeathed as money. The implied conversion was then used not only to carry out testator’s intention as it related to the subsequent bequests, but, once invoked, it reached all dispositions, including that to the widow. This was a misapprehension of the fundamental principles of equitable conversion. [33] Before discussing them, it might be well to state the language used in the devise to the wife was in fact a devise of one-third of the personalty absolutely, and a life estate in one-third of his real estate. Land was specifically devised to her as such. It certainly was not testator’s intention, from this bequest, to give one-third of his estate absolutely. (The important parts of the will are found in the Reporter’s notes.) It must be remembered, before the governing rules respecting conversion operate in construing a will, the purpose of the testator, applied to the subject-matter under consideration, must first be ascertained, and, when thus ascertained, the rule operates only so far as is necessary to carry that purpose into effect: Painter v. Painter, 220 Pa. 82, 86. The mere blending of real and personal estate, without a clear and indubitable intent to create a • common fund, and the accidental fact that the personal estate may prove insufficient to pay legacies, will not, of themselves, constitute a conversion: Chamberlain’s Estate, 257 Pa. 113, 116. The law does not favor conversion, and, as a general rule, where there is a clear intent to convert, it takes effect from the death of the testator. Where, as here, there is a discretionary power of sale, or there is a necessity to sell to execute a will, or a fund is created from a blending of real and personal property that is devised as money, such conversion does not become effective in law until it is at least certain conditions will arise calling for its use. Conversion is a fiction, and should not be dealt in until there is an absolute necessity for it. On a first survey of an estate it may appear necessary to sell to carry out an intention; subsequent developments may make it unnecessary. The residuary legatees, or persons beneficially interested, may elect to take real estate as such and pay pecuniary legacies; a change in values may make it wholly unnecessary to sell; other conditions may arise causing the same result. The point we wish to make clear is, until conversion actually [34] happens, land isitill land, and money still money. Conversion ordinarily takes place when a sale of the property is made: Davidson v. Bright, 267 Pa 580, 583, 584, 585; Reel’s Est., 272 Pa. 139. At testator’s death we have both land and personalty on which the widow’s devise fastens, not to be subsequently loosened by what may happen to the rest of the estate. The legacies were presumably larger in amount than the personal estate, and, to work them out, it may be necessary to sell the real estate and create a common fund; if the testator had this in view and gave away more than he had, or it arose from a subsequent depletion in value of his personal property, it related, under the will, solely to these bequests, not to the widow’s. The controlling principle is laid down in Thompson’s Est., 229 Pa. 542, 544 et seq., where the testator gave to his wife one-half the personal property and one-half the income from his real estate, coupled with a positive direction to sell, working a conversion from the death of the testator. Notwithstanding this positive direction to sell and convert, we held the devise to the widow should assume the shape the testator intended it, — one-half of the personal property and one-half of the income from the real estate; she was not entitled to one-half of the proceeds of the real estate as personal property, — the testator had no thought of converting the real estate into personal property for the purpose of bringing it into the terms of the bequest to his widow. While appellants argue the use of the word “income” distinguishes the cases, what the widow gets under the present will is the use or income of one-third of the real estate for life. There may be a little difference in the language, but the effect is the same. Here we have this language, “compute and set aside.” The personal property would ordinarily be computed and the real estate set aside. It is urged the case is analogous to Dull’s Est., 222 Pa. 208. With this we cannot agree. The testator there intended all his property to be treated as personalty, and [35] as such directed his widow should receive her legal share of the real and personal estate. She was to receive one-half the proceeds because of the express direction “that her share be paid to her,” coupled with a positive direction to sell. And it was to be paid to her out of the estate just as the shares of the three sisters were to be paid to them; we held the entire estate passed as personalty, and from it she took her legal share. The court below was in error in holding it impossible, as to the widow’s devise, to carry out the will without a sale, as a result of which a conversion was effected as to her interest. The assignments of error are sustained, the decree of the court below is reversed, and the record is remitted with directions to distribute in accordance with this opinion; costs to be paid by the estate.