Peterson's Appeal

1. Testator gave an estate for life to each of his children, and provided that if any of said children should die leaving issue, said issue should, if under age, receive the income of their parents’ share until they attained their majority, and if of age, then receive their parents’ share at once. Held, that a minor grandchild took a vested interest, postponed only until the attainment of full age. 2. Where a discretionary power of sale is given by will to trustees, no conversion of realty into personalty will take place until a sale is actually made. To work a. conversion the direction to sell must be positive, irrespective of contingencies and independent of discretion.

Appeal from the Orphans’ Court of Philadelphia county: Of January Term 1879, No. 3. Appeal of Thomas K. Peterson and Israel Peterson, surviving trustees under the will of John Peterson, deceased, from the decree of the court confirming the adjudication of the account of said appellants. John Peterson died December 27th 1855, leaving a will by which he devised all his estate, real, personal and mixed, unto Thomas K. Peterson, Israel Peterson and Edwin Mitchel, and to the survivors and survivor of them and to the heirs and assigns of such survivor in trust: first, for the payment of his debts ; secondly, for the payment of certain annuities to his wife and one of his daughters; and thirdly, for the payment to each of his other eight children of the income of one-eighth part of his residuary estate during their respective lives, with the privilege of obtaining certain loans out of the moneys of the estate, for which interest was to be charged by the trustees. As to the disposition of his estate after the death of his children the testator provided as follows: “ And from time to time as any of my said children, namely: the said Eliza W. Boyle (if she survive her husband and return to her family with her children, and to the Protestant faith, but not otherwise), the said Thomas K. Peterson, Israel Peterson, Alexander Peterson, Alfred Peterson, Francis Peterson, Mary Ann Mitchel, Jane Peyton, and John Howard Peterson, shall die leaving lawful issue, such issue, if under lawful age, shall be entitled to receive the interest and income of their parents’ share equally among them —if one, solely, and if more than one, in equal parts; and as they severally attain such lawful age, they are to receive and be paid their share and portion of the principal or capital fund of which their parent had received the interest, and income, the loan, if any, to such parent to be taken as part thereof; and those of my said children leaving lawful issue of lawful age, such issue shall receive and be paid the said principal or capital fund of which their parent had received the interest and income, such loan to be taken as a part, if one solely, and if more than one, equally among them. But in case any of my said children should die without leaving such lawful issue, then and in that case the share and part of such child so dying, as well the real as the personal estate, shall lapse and fall back into my estate and be divided among such of my said children as may be then living, and -the issue of such as may be dead, in the way and manner as I have directed in relation to their particular-share of my estate. “ And in order to enable my said trustees to pay off and settle any of the shares and portions of my estate which may from time to time become due and payable on the decease of any of my said children, it shall and may be lawful for them, my said trustees, to take any of the unappropriated funds of my said estate, or to sell any of my real estate for such purposes, and in order to arrive at the value of such share at the time of the decease of any such child or children, it shall be lawful for the said trustees, or the survivors or survivor of them,' with the child or children, if of full age, and the next friend or guardian of such as may be under age, mutually to choose a judicious and disinterested citizen, and these citizens, if an even number, to choose another, or in case they cannot agree upon such persons, then to apply to the judges of the Orphans’ Court to appoint such discreet and judicious persons, who, upon being duly qualified, shall ascertain the value of such share or portion, and in order to do so, they shall make a just and fair valuation of all the real and personal estate — that part which is subject to a life-estate shall be valued but not divided and paid until after the falling in of such life-estate — and upon such share being so ascertained and a due record thereof made or being confirmed by said court, any of my said children shall be at liberty to take the same at such valuation, the eldest male having the first choice and so on to the youngest, and if none of the males will take, then to be offered to the eldest female, and so on-to the youngest, and if none of them will accept thereof (my- meaning is that the part which my said children may elect to take as above mentioned, is that part w-hieh may be found necessary to be sold to raise a fund to pay off the share of the child arriving, at full age as above set forth), then and in such case the same shall be sold by my said trustees, or the survivors or survivor of them, who I also appoint executors hereof, at public sale to the highest and best bidder, any of my said children having the right to become purchasers thereof, such sale to be made in the same manner and on the like terms and conditions as I have hereinafter ordered and directed as to my estate generally, and with such funds to pay and satisfy'the person entitled to such share, his or-her portion thereof; and the like proceedings shall.be had as often as it may be required to ascertain and pay off such share or shares.” The testator then nominated the trustees above named to be executors of his will, and gave them full powers whenever they might deem it advantageous to his estate, or “ for the purpose of more easily making partition and division thereof among the parties interested,” to sell the whole or any part of his estate and to invest the proceeds or so much thereof as might not be required for the uses of his will in other real estate or in securities yielding income. He also gave them full powers of lease, repair and improvement of his real estate. John Howard Peterson, one of the children of testator, died intestate, on May 29th 1875, leaving a widow, Caroline E. Peterson (nowr Speakman) and one child, Carrie May Peterson, who after-wards died on November 21st 1877, a minor. ■ Edwin Mitchel, one of the trustees having died, the appellants, as surviving trustees, on January 29th 1878, filed their separate account in the Orphans’ Court of Philadelphia county. Mrs. Speakman, the appellee, appeared before the auditing judge and claimed, as next of kin to Carrie May Peterson, to receive the income of John Howard Peterson’s share of the estate accruing since the last payment to Carrie May Peterson, and also claimed the principal of said share. The auditing judge decided that letters of administration must be taken out on the estate of Carrie May Peterson, and awarded the accrued interest of John Howard Peterson’s share to such administrator. He also decreed that the principal of said share “be valued and paid unto the said administrator according to the will of the testator.” To this adjudication the trustees filed the following exceptions: 1. The learned judge erred in deciding that Carrie May Peterson died seised of a fee in the share of testator’s real and personal estate, bequeathed and devised in trust for her father, J. Howard Peterson, for life. 2. In deciding “that at the death of John Howard Peterson, his daughter, Carrie May Peterson, acquired an absolute vested interest in the share of the testator’s estate given to her, and that this interest was not divested by reason of her death under the age of twenty-one years; but that it passed, under the intestate law, to her mother as her next of kin.” 3. In not deciding, that upon the death of Carrie May Peterson, a minor, her father’s share lapsed into the residuary estate of John Peterson. 4. In deciding, that the will of John Peterson worked such a conversion of John Howard Peterson’s share, that the real estate unconverted at Carrie May Peterson’s death, passed as personalty to her mother. 5. In awarding the share of John Howard Peterson in the real estate of testator, to the administrator of Carrie May Peterson. The court dismissed the exceptions and confirmed the adjudication from which decree the trustees took this appeal.