Henry v. M'Closkey

The opinion of the court was delivered by Kennedy, J.

The solution of the question raised in this case, depends upon the construction that is to be put upon the clause of the will which has given rise to it. ' If the direction of the testator to sell his real estate is to be considered as absolute, and a thing that he intended should be carried into effect, when Hannah, his youngest daughter, should come of full age, and his widow should *147 agree to it; or if his widow should not agree to it during her life, then that it should be effected immediately upon her death, or if upon Hannah’s attaining the age of twenty-one years, his widow should be dead, that it should then be sold, the land would be considered money in equity from the death of the testator, and one-sixth part thereof, being vested, as a legacy in money, in Hannah at the time of her death, her husband under our intestate law became entitled to it; and, having taken out letters of administration upon her estate, would have a right to claim a judgment for the recovery of it here. But if from the words of the will, to which alone we must look, in order to ascertain what was the intention of the testator, in this respect, it shall appear that he only intended a sale should be made of the real estate, in the event of his wife’s consenting to it, and not otherwise, a conversion of it into money would not, even in equity, be considered as having taken place, until such consent on her part had been given. But as her consent to a sale was not had, until after the death of. the wife of the plaintiff, in whose right he seeks to recover the whole as her personal representative, it is clear that he cannot recover in that character; but as the real estate of his wife, of which he was seised in her right at the time of her death, he, having had issue by her capable of inheriting it, is entitled to claim the use of it as tenant by the curtesy during his natural life. This distinction is not only sustainable upon the ground of reason, but the authorities cited and referred to by the counsel for the'plaintiff go to support it; and to show that the plaintiff can not recover his wife’s portion of the real estate of the testator as a money legacy bequeathed to her, unless the direction of the testator in his will to sell it be regarded as absolute and unconditional. In the case of Rinehart v. Harrison, 1 Baldw. 185 , a case referred to by the counsel, Mr. Justice Baldwin lays it down, that “ it will be considered'as money from the death of the testator, when the direction for a sale is absolute, and the proceeds disposed of as money.” For this, he cites 1 Roper on,Leg. 369; Fletcher v. Ashburner, 1 Bro. Ch. 497; Smith v. Claxton, 4 Madd. 484. So Leigh and Dalzell on Equitable Conversion 15,5 Law Lib. 8, say, “that in order to make the various means before mentioned of converting property effectual, it is essential that the direction to convert be positive and explicit:” and for this, they refer to Symons v. Rutter, 2 Fern. 227, and Curling v. May, cited in Guidot v. Guidot, 3 Atk. 255, which seem to sustain their proposition fully. The question then here' would appear to be, has the testator, by his will, explicitly, and positively and absolutely directed that his real estate shall be sold and distributed as money, giving one-sixth thereof to the wife of the plaintiff? We think, that, according to the terms of the will, and by giving to them an interpretation that will be free from conjecture, he has not. For, in the first place, he declares expressly, that “ the land is not to be sold upon .any account, until the young *148 est devisee above mentioned, (meaning Hannah, the late wife of the plaintiff,) is twenty-one years old;” and then he directs, “ when my youngest child (meaning Hannah) is of age, it is my desire that all the land shall be sold, if my wife agrees to this,” without making or giving any further provision or direction for a sale of it in any other event. Why he has thus in the most explicit terms, made the sale depend upon the consent of his wife, it is not for us to say. It may be, however, that as she was one of the executors, and had an interest in it, he was not willing that a sale should be made by them without she should think that she would be benefited by it, and the sale have the benefit of her counsel and advice. At all events, it will not do for us, though we can see no other object which the testator could have had in view in directing a sale, but that of making an equal distribution among the six daughters, to determine that he intended the land should, therefore, be sold absolutely upon the death of his wife, if she prevented its being done during her life by withholding her consent, because this would only be conjecture at best, which is never to be resorted to for the purpose of ascertaining the intention of the testator, which is to be the guide in the construction of wills especially. Besides, it is only, as we have seen, where the testator has explicitly directed that a sale shall be absolutely and positively made of his real estate, that the conversion of it is to be considered as taking place from his death. Here no sale was to be made, unless the testator’s wife consented to it; the sale, therefore, which was directed was not absolute, and could not be so considered, until the wife had given her assent. Until then, it could not be considered converted; nor any thing except real estate, which was, after the death of the wife of the plaintiff, when it descended to him at law as land. Besides, the testator calls the wife of the plaintifF his “ youngest devisee,” which, technically speaking, could only be applicable to her upon the principle, that she, at his death, should take the interest that he designed for her in his land, as real estate, and not as personal estate or money.

Judgment affirmed.