Pyle's Appeal

1. A testator in his will made the following provision, — “Upon the marriage or death of Mary, (my wife), whichever may happen first, then, my will is that my executors, as soon after as can conveniently be done by them, are to sell and dispose of all my real and personal estate as follows: First, If my sons, Friend Pyle and Atwood Pyle, or either of them, have a wish to have my real estate (which is in' two parcels, or tracts of land), it. may be appraised to them . . . then after the whole amount, or value of my real and personal estate Is found by sale, or valuation or both (as the case may be). Then my will is . . . .” &c. Held, that the will worked a conversion of the real estate into personalty. 2. The testator then devised and bequeathed the rest and residue of his estate to his children as follows ; “ The rest and residue of my estate I give and bequeath unto, and among all my children, . . . to be equally parted and divided among them, share and share alike, and my will is, that in case any of my children shall depart this life before such time as the portion of him, her or them so dying shall become payable, which shall beat their several respective .ages of twenty-one year, then and in such case tito portion of him, her or them, so' dying, shall go and be equally divided among the survivors or survivor of them, share and share alike.. Unless they so dying shall leave lawful issue, who in such case shall have parents, portion, provided they, (the issue) shall live to be twenty-one years of age ”.....One of the testator’s daughters, having attained majority, died married but without issue, before his widow: Held, that under the provisions of the will the; title to her distributive shave vested in the daughter, upon her attaining her majority, as peisonal property, and that her administrator was entitled to the same.

Appeal from the Orphans’ Court of Delaware county: Of July Term 1882, No. 94. Appeal of Friend Pyle, executor of the last will and testament of Reece Pyle, deceased, from a decree of said court, making distribution of the personal estate of said decedent, and of the proceeds of Ms realty. Before the Auditor appointed to make such distribution, the following facts appeared : Reece Pyle, a resident of Delaware county, died February 4th 1860, possessed of two tracts of land and certain pei-sonalty, and left surviving him Ms widow Mary Pyle and five children, Friend, Atwood, Cynetta, wife of George Oobourn, Mary, wife of R. S. Bullock, aud Anna M., wife of James M. Smith. In his will bearing date Mai’ch 6th 1849, the testator, after providing for the payment of his debts, continued as follows: “ I give and bequeath unto my loving wife, Mary P.yle, the use and profits of all the residue of my estate, real, personal and mixed, so long as she shall remain my widow, unmarried and single, and upon the marriage or death of Mary (my wife), whichever may happen first, then my will is that my executors, as soon after as can conveniently be done by them, are to sell and dispose of all my real and personal estate as follows, first, if my sons, Friend Pyle aud Atwood Pyle, or either of them, have a wish to have my real estate (which is in two parcels, or tracts- of land) it may be appraised to them.....each farm separately,' putting a fair valuation on each, and after such valuation, my son, Friend Pyle, to have his choice of the farms, then after the whole amount, or value of my real and personal estate is found by sale, or valuation, or both (as the case may be), then my will is: To wit:.....I give and bequeath unto my son, Atwood Pyle, $500, all the rest and residue of my estate I give and bequeath unto, and among all my children ........to be equally parted and divided among them, share and share alike, and my will is, that in case any of my. children shall depart this life before such time as the portion of him, her or them so dying shall become payable, which shall be at their several respective ages of twenty-one years. Then' in such case the portion of him, her or them, so dying, shall go and be equally divided among the survivors or survivor of them, share and share alike. Unless they so dying shall leave lawful issue, who in such case shall have the parents’ portion, provided they (the issue) shall live to be twenty-one years of age, . . . And lastly, I constitute and appoint my said wife and my son, Friend Pyle, to be executors to this my last will and testament.” One of the testator’s children, Anna M. Smith, died June 27th 1862, twenty-six years of age, intestate, leaving a husband James M. Smith, but no children. Mary Pyle, the widow, died November 3rd 1872. In 1873, by the advice of counsel, the estate, both real and personal, was divided as follows : The real estate was appraised according to the terms of tbe will, and taken by the two sons, one parcel by Friend at $5,000; the other by Atwood at $5,300. These amounts, together with the value of the personalty, were divided into four equal shares, and distributed among the four children then living. James M. Smith was not notified of this settlement, and made no claim for any part of the estate at this time. Six years afterwards, Smith took out letters of administration on his wife’s estate, and presented a petition to the Orphans’ Court, setting out the foregoing facts, and averring that he was entitled, in right of his wife, to one-fifth of testator’s estate. The Auditor to whom this claim was referred reported in favor of the petitioner, and awarded him one-fifth of the personal property, on the ground that, under the will, his wife’s interest in her father’s estate, vested in her absolutely upon her arriving at the,age of twenty-one years,’ and was not contingent on her surviving her mother ; and also one fifth of the proceeds of the real estate, holding that the will worked an equitable conversion thereof into personalty. Exceptions filed to this report were dismissed by the corn t; Clayton, P. J., delivering the opinion, and a decree was entered accordingly, whereupon Friend Pyle as executor took this appeal assigning for error the decree of the court.