Coles v. Feeney

Pitney, V. C. I do not think the rights of the parties turn upon the question, so much discussed in the briefs-, whether or not the land in question “remained unsold" at the decease of the testatrix, and because sold was not devised by her under the first item of her will, or whether she “died seized" of it in such sense as to bring it within the scope of the power of sale contained in the thirteenth item. If this contract of sale was a valid contract, its effect was to work a conversion of the land from real to personal property 1 This it was in the power of the testatrix to do, notwithstanding [495] her will, which was made before the date of the contract- Such conversion, if made, had. the effect of taking the land out from under the operation' of the first clause of her will and giving the proceeds of it to her residuary legatees and devisees as a ■part of her personal estate, and, in the absence of any power of sale, it seems to me entirely clear that the executors would have the right, and it would be their duty, to take proper proceedings to perfect the conversion by compelling the transfer of the legal title to the purchaser and obtaining from him the purchase-money. Miller v. Miller, 10 C. E. Gr. 354. In contemplation of equity, the title to the property vested in the purchaser as soon as the contract was executed and delivered, subject, however, to a lien in favor of Mrs. Coles for the unpaid purchase-money, and'that lien is capable of being enforced by her executors against the specific devisees of the particular land, even in the absence of any power of sale, by compelling them to convey to the purchaser and compelling the purchaser to pay to the executors the purchase-money. This right of the personal representatives depends entirely upon the validity of the contract, and in order to enforce such right they must establish its validity as against either the heir-at-law or devisee, as the case may be. Story Eq. Pl. 177 a; Fry Spec. Perf. § 115 (3d ed. § 190); Calv. Part. 293; Barb. Part. 397, 399; Roberts v. Marchant, 1 Hare 547; S. C., 1 Phil. 371. Again, if the contention of the executors be correct that the effect of the contract was to take the land out from within the scope of the first clause of the will and bring it within the scope of the power of sale given them by the thirteenth clause of the will, still that effect depends upon the establishment of the existence and validity of the contract against the specific devisees of the contract. So that, in any view to be taken, the executors’ power depends upon the establishment of that contract as against the devisees under the first clause of the will, and they are not parties to the bill. This view of the case shows that .the bill is defective in not making parties the several devisees under the first clause of the [496] will. If they had been' made parties I should say the executors' were entitled to relief. But it is manifestly unjust, and not in accordance with equity, to ask the purchaser to take a title the validity of which depends upon a nice question of construction,, when it is within the power of the executors to eliminate all question and room for debate by making the specific devisees parties.' The case may stand over, to enable the executors to bring in. those devisees if they shall be so advised. Otherwise, I will advise that the bill be dismissed.