Brown v. Fidelity Trust Co.

Backes, Vice-Ordinary. If the direction of the will as to the proceeds requires a sale it is equivalent to a positive direction to sell, and the land is deemed personal property from the death of the testator. Cook, Executor, v. Cook, Administrator, 20 N. J. Eq. (5 C. E. Gr.) 375. A conversion is a question of intention, and the real question is, Did the testator intend his lands should be converted into mone)' at all events before distribution? Wurls’ Executors v. Page, 19 N. J. Eq. (4 C. E. Gr.) 365. No suggestion has been offered, nor can one be made, how other than by a. sale and conversion Susannah’s $2,000 and Mary’s share for life could be got, or in what manner Sarah’s and Benjamin’s portions could be had for the purpose of investment, or whence the executor wars to put himself in funds to advance to Benjamin some or all of the principal of his share during his lifetime. It is patent that the testator intended his land should be turned into money before it was distributed. The share of Almira was to be paid to her in'money. It was a vested legacy. Security Trust Co. v. Lovell, 78 N. J. Eq. (8 Buch.) 445. Upon her death it passed to her personal representative. The codicil does not disturb this bequest except that it further postpones the payment until the death of the life tenants added by the codicil. Its plain meaning is that upon this happening the estate was to go to the testator’s heirs-at-law (next of kin) in the manner and proportions provided for by the will. It is urged that the will evinces an intention on the part of the testator that his estate should be enjoyed by his descendants exclusively, and hence it would be doing violence to his wishes and desires to dispose of it otherwise, even though that disposition be according to well settled rules governing the interpretation of wills. The answer to this is that the testator gave to Almira her share without limitation, and it is to be presumed that he did so understanding its legal effect and the consequence in the event of her death. The language employed has a well settled legal significance, which must be regarded as having been [327] within the contemplation of the testator, and is to be accepted as the true meaning of his testament. The provision of the will which directs that the remainder of the shares of Mary and Susannah for life shall be divided among their brothers and sisters, “or the lawful issue of any such brother or sister who may have died since the decease of this testator,” is a bequest to the children of brothers and sisters deceased at the time of distribution, in substitution of their parents. Lanphier v. Buck, 2 Dr. & Sm. 484. It was so considered in the opinion below, but for some unexplained cause the decree of distribution excludes the appellants from participation, while the shares of other brothers and sisters of the life tenants who predeceased them were ordered paid to their children. In this respect the decree is erroneous. It will be modified, directing a one-seventh share to be paid to the appellants in equal portions. The decree will be reversed with costs.