In re Curtis' Will

Barrett, J.

We agree with the learned referee in the conclusion arrived at as to the main question presented in this matter, namely, that of equitable conversion. This question was elaborately considered by the learned referee, and nothing need be added to his able and convincing opinion on that head. The report in this particular was confirmed by the learned surrogate, and an opinion filed expressing full concurrence with the referee’s views. Subse *191 quently, however, the learned surrogate decreed that the taxes and assessments which accrued against the real estate between the death of the testatrix and the date of the sale should not be paid out of the proceeds of such sale, but should be paid out of the income to be derived from the investment of these proceeds. This ruling, it seems to us, was not in harmony with his previous decision confirming the report of the referee. By that report, and the decision confirming it, the taxes and assessments which accrued upon the property prior to the death of the testatrix were directed to be paid out of the proceeds of the realty. This was upon the distinct ground that, in order to ■carry out the provisions of the will and the intentions of the testatrix, an •equitable conversion of the real estate into personalty for all the purposes of the will must be implied, and that such equitable conversion was thereby effected. If the reasoning which led to this conclusion was correct,—and we think the referee has demonstrated its correctness,—then all the liens upon the property, whether accruing before or after the death of testatrix, should be paid out of the proceeds of the sale. The real estate in question was vacant land, and no income was derived from it between the death of the testatrix and the time of the sale. The cestui que trust did not therefore benefit in the least from this property while the liens in question continued to accrue; and it was clearly the net proceeds of the sale, after paying all existing incumbrances,—that is, existing at the time of such sale,—which the testatrix intended by the fifth clause of her will to divide into eight equal portions. The reasoning with regard to the liens existing when the testatrix died, applies ■equally to those which accrued down to the date of the sale. We think that the decree on this head should be affirmed on the executor’s appeal, and reversed on the appeal of Clara Isabelle Curtis and Julia Frances Munson. With regard to Mr. Curtis’ appeal, we concur in the result arrived at by the learned surrogate, and also with the referee in the general discussion of the married women’s acts of 1848 and 1849. As to the rent of the Bridgeport house, we differ with botli the learned referee and the learned surrogate. That rent was due to the landlord, and he assigned his claim therefor to Clara Isabelle Curtis. By this assignment Miss Curtis became entitled to payment, quite the same as the landlord would have been had the assignment not been made. The estate had no claim against Miss Curtis which could be set off against the debt for rent thus assigned. Whatever claim the estate had was against Miss Curtis and her sister, Mrs. Munson, and even that was disputed. The remedy of the executor was by action against Miss Curtis and Mrs. Mun-son, and he was not entitled to reserve $500, or any other sum, from the personalty payable under the will to himself as trustee, or from the income ultimately coming to the beneficiaries. Section *2812 of the Code of Civil Procedure is inapplicable to the facts under consideration. There was here no “claim in controversy respecting the right of any person to share in the money to be distributed.” The decree in this respect should therefore be reversed, and the executor required, without reservation, to pay Miss Curtis the amount •due for the rent in question, with interest. It should also be reversed in the particular already pointed out, and the executor required to pay all liens, assessments, and interests out of the proceeds of the realty. In all other respects the decree should be affirmed, with costs to the executor, and to Miss ■Curtis and Mrs. Munson, jointly, payable out of the fund.