Pullinger's Estate

Opinion by Morrison, J., In our opinion the decree of the court below is right and it is fulíy and concisely sustained by the opinion of Judge Anderson of the orphans’ court, and we refer to that opinion and approve its conclusions- and its review of the facts. It is true there are Pennsylvania cases, like Evans’ App., 63 Pa. 183, mentioned in the opinion in Luffberry’s App., 125 Pa. 513, where it has been held that where a testator directed the sale of certain real estate and the application of the proceeds to a charitable use, and-the gift was void, the real estate was nevertheless converted into personalty. In those cases, however, the direction to the executors to sell the real estate was in the most positive terms, and it was the intention of the testator to [634] turn all his property into money as an end, rather than a means. In Luffberry’s App., 125 Pa. 513, wherein the opinion of Hanna, P. J., was affirmed by the Supreme Court, we find the following: “Much reliance was placed at the argument upon the case of Evans’ App., 63 Pa. 183, as showing that not only is there a conversion directed by the will, but that the sale should be made, for the reason that the next of kin are entitled to the proceeds as personalty. But an examination of the case makes it apparent that the only question decided was whether there was an absolute conversion. The court did not decide who were the parties entitled to the moneys to be realized by the sale. In that case, too, the conversion was directed for the general purposes of the will, as Read, J., says: ‘there are several legacies to be paid as well as debts, and money to be expended in the improvement of the burial lots.’ In conclusion,, we have only to say, that while there is a conversion directed by testator, yet, as that was for a specific purpose, which has wholly failed, there is now no necessity for a sale, the heir at law being entitled to take the land as land, and the petition must be dismissed.” If, however, there has heretofore been any doubt in cases like the one now under consideration, that doubt was settled beyond all controversy by the late case of Muderspaugh’s Est., Helman’s App., 231 Pa. 376, in a clear and concise opinion by Mr. Justice Mestrezat. That case was decided since the decision of the present one by the court below. We quote its syllabus which is fully sustained by the opinion: “Where a testator has by will directed a sale of his real estate for the specific purpose of producing a fund to pay charitable bequests named, a part of the fund intended for a bequest which fails, goes to the heirs at law as real estate, and not to the next of kin as personal property, and this is the case although the real estate was actually sold.” We can see no substantial difference between that case and the present one, save only, that in the former chari [635] table bequests failed by reason of the death of the testatrix within one calendar month of the execution of the will; while in the present case the charitable bequest failed by reason of the testatrix failing to have her will duly witnessed as required by sec. 11, Act of April 26, 1855, P. L. 328. Both wills were in. violation of the same section of the act and the slight difference in the facts does not vary the legal principles involved. In the present case the testatrix left her surviving, as her next of kin, her half-sister, the daughter of her father who was not, however, of the blood of the mother from whom the real estate descended and therefore not an heir at law with respect thereto. At the audit the balance of the proceeds of the sale of the real estate was claimed on behalf of the half-sister, on the ground that as the testatrix had directed the sale of her real estate, an equitable conversion thereof took place into personalty, and it therefore descended to her next of kin. The heirs at law, who were first cousins on her mother’s side, however, contended that as these gifts were inoperative, no conversion of the real estate took place as to them, and that, therefore, the fund passed to them as real estate, and this contention was sustained by the auditing judge, on the authority of Ackroyd v. Smithson, 1 Bro. C. R. 503; and Painter v. Painter, 220 Pa. 82, and this conclusion of the auditor was sustained by the orphans’ court. We are well satisfied with the decision of the questions involved by the court below, and, in our opinion, the assignments do not disclose reversible error, and they are all dismissed. Decree affirmed at costs of appellant.