Yerkes v. Yerkes

William W. Porter, J., Opinion by (after stating the facts as set out in the statement of facts) : The clauses of the will above quoted in the statement of facts devise an absolute estate in lands with a direction to the devisees to sell. Were the devise to one person, little embarrassment in construing the effect of the clauses would be experienced. The devise of the land in fee would supersede the direction to sell, since the former includes the right to retain or alien at pleasure. But the devise is to three persons. This introduces an element of difficulty. If one of the three were an executor, or third person taking no interest in the land or the proceeds, such person would stand in the position of a trustee with direction to sell and distribute. This would, under the will, work a conversion of the land devised. The association with such a trustee of one or more persons taking an interest, would not alter the character of the trust, nor prevent the conversion. But here three parties take the land among them. Each in respect to the portions of the other two is a trustee to sell and distribute. The fact that he is himself a devisee and distributee does not change his relation to the other shares or [446] to the fund produced by a sale. Furthermore, the title of the devisees is impressed with a trust in that if the actual conversion were consummated during the life of the testator’s widow, the proceeds would be retained in trust during her life or so long as she should remain unmarried. Again, should any of the three devisees die, living the widow, the proceeds of the sale would continue in trust with the survivors. It is true that when there is a conversion by direction to sell, the parties interested may agree to take the land itself without a sale. Such an agreement works a reconversion, and thereafter the interests of the devisees are in the land: McGarry v. McGarry, 9 Pa. Superior Ct. 71; Howell v. Mellon, 189 Pa. 169; Henderson v. Henderson, 133 Pa. 399. This right of reconversion has been carried to the extent of making valid a mortgage given by a distributee where a subsequent agreement was executed between the remaining distributees to treat the testamentary provision as a devise of land, the execution of the mortgage being construed to be an equitable assignment and a lien on the interest of the mortgagor in the land, which lien, after partition, attached to the purpart allotted to the mortgagor in severalty: Bailey v. The Bank, 104 Pa. 425. Here a creditor secured a judgment (adverse so far as this record shows) and sold Seymour Yerkes’s interest. The creditor thereby elected to treat the interest as in the land. But the act of the creditor was not an election by Seymour Yerkes (Allison v. Wilson, 13 S. & R. 333), to deal with his interest as land, nor evidence of acquiescence or concurrence in the acts of his sister and brother, who may have elected to treat the interests created by the will as in land and not in the proceeds of its sale. Were we able to-strike out of the will the order to sell, a different result from that reached by the court below would be possible. The clause is not, however, so glaringly inconsistent with the devise of the land in fee as to make it void for repugnancy. The whole question is one of intent. Gleaning this from the provisions of the will, and having regard to the rule of law, which gives to a direction to sell the effect of working a conversion, we are led to affirm the decrée entered in this case, since no title to the share of Seymour Yerkes. passed by the sheriff’s sale, and none was, therefore, acquired by his sister in the purchase from the sheriff’s vendee. The decree is affirmed.