In re Ledeich's Estate

1. Deed—1Transfer of Personalty. Though a will devising land to an executor in trust to seU the same, and divide the proceeds among testator’s children, may work an equitable conversion of the realty into personalty, the children are the equitable owners of the personalty, and their respective shares may be transferred by deed. 2. Trusts—Dealings between Trustee and Cestui Que Trust. A deed by a devisee of one of the children, conveying his interest in the trust estate to the executor, is not invalid, under the rule prohibiting a trustee from dealing with the trust estate, where it appears that the grantor was of full age, and stood on an equal footing with the executor. '8. Estoppel—Pleading against Deed. Where, after the executor’s death, his executrix files her petition for the settlement of the trust estate, an allegation in such petition that the grantor in the deed is interested in the settlement cannot alter the effect of the deed, which estops him from claiming any further interest in the estate.

Appeal from surrogate’s court, Erie county. Petition by Charles Lang to compel Charlotte Schumacher, executrix, etc., of Conrad Schumacher, deceased, who was the executor of the last will and testament of Frederick Ledrich, deceased, to account for the proceedings of Conrad Schumacher as such executor. From a decree dismissing the petition, the petitioner appeals. On the 17th day of November, 1857, the last will and testament of Frederick Ledrich, deceased, was proved and admitted to probate by the surrogate of the county of Erie, and letters testamentary thereon were issued to Conrad Schumacher. The will provides as follows: “First. I order and direct that all my just debts and funeral expenses be paid by my executor hereinafter named as soon after my decease as conveniently may be. Second. I give and devise all my real and personal estate, of what nature or kind soever, to Conrad Schumacher, the executor of this, my last will and testament, hereinafter nominated and appointed, in trust for the payment of my just debts and the legacies above specified, with power to sell and dispose of the same at public or private sale at such time or times, and upon such terms and in such manner, as to him shall seem meet, and, until the sale of such real estate, to rent the real estate for the best rents that can be procured. And the proceeds of such sale is to be divided equally between my children, share and share alike, which said several legacies or sums of money 1 direct and order to be paid to my sons Frederick and Louis within ten years after ray decease, and to my other children, Salomea, Henry, Sophia, Philip, and Charlotte, when they have respectively arrived at the age of twenty-one years. On account of my two sons Frederick and Louis having forsaken me in my eld age and sickness, I order and direct that1 the interest that may accrue on their shares be divided between the rest of my children in equal shares. Third. I give and devise to my wife one cow, one cupboard, one clock, one bed, and such other furniture as the law directs, or as a widow is entitled to. Fourth and lastly. I nominate and appoint Conrad Schumacher solo executor of this, my last will and testament, hereby revoking all other wills by me made. . In witness whereof, I have hereunto set my hand and seal this first day of July, A. D. 1857.” In 1860, Salomea Lang, who was the wife of the appellant, and one of the daughters of the testator, petitioned the surrogate for an accounting by Conrad Schumacher as such executor. But pending such proceedings she died, leaving a last will and testament, which was admitted to probate February 5, 1861, in and by which- she devised and bequeathed her estate to the appellant, her husband. The proceedings upon such accounting were continued and terminated in a decree of the surrogate’s court dated February 6, 1861, wherein Conrad Schumacher, as executor, was charged with the balance in his hand, 8-123.95. and was directed by such decree to apply the same towards the discharge of a mortgage upon the real estate left by the testator. On the 20th day of December, 1862, Charles Lang, the appellant, conveyed all Ms estate, title, and interest in the real estate left 'by the testator to Conrad Schumacher, ifi consideration of the sum, as mentioned in the deed, of §250. In the year 1865 the real estate of the testator was sold by his executor, and subsequently, and in the year 1874, the proceeds thereof were distributed among the testator’s children, with the exception of the share of Louis Ledrich. On the 24th day of September, 1887, Conrad Schumacher executed his last will and testament, and shortly thereafter died. His will was admitted to probate on the 10th day of January, 1888, and letters thereon were issued to Charlotte Schumacher. In the month of April, 1890, Charlotte Schumacher, as executrix, petitioned the surrogate’s court for a settlement of the accounts of Conrad Schumacher as executor of the last will and testamejit of Frederick Ledrich, and in such petition stated that the only person interested m the settlement was Charles Lang. That on the 7th day of April, 1890, a citation was issued, directed to said Lang, reqmring Mm to appear upon the settlement of the accounts of Conrad Schumacher as executor, and such citation was served upon the said Lang; but nothing further appears to have been done thereon. Subsequently, Willis C. Jaeus, as admimstrator of Louis Ledrich, deceased, presented to the surrogate’s court a petition for the judicial settlement of the accounts of Conrad Schumacher, and such proceedings were had thereon that a decree was entered by that court on the 9th day of March, 3891, finally settling such accounts. But the appellant, Lang, was not cited to appear, and did not appear, in such proceedings. The surrogate found, as conclusions of law: “First. That the said deed from Charles Lang, of his interest in the farm belonging to the Ledrich estate to Conrad Schumacher, is binding upon the said Lang, and operates as an absolute estoppel. Second. That, more than six years having elapsed since the right to commence tMs proceeding accrued, the same is barred by the statute of Ihmtations,”—and concluded by ordering the proceedings dismissed.