Erb v. Erb
Erb against Erb
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Summary
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Opinion of the Court
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The opinion of the Court was delivered by Kennedy, J.
According to the case, as stated by the counsel of the parties, it became necessary to apply to the Orphans’ Court of the county for an order, authorizing the administrators of Christian Erb, who died intestate, to sell his real estate to raise money thereby for the purpose of paying his debts, which order was made on the 19th August 1844. The administrators, pursuant thereto, sold the estate at auction on the 12th October 1844, to *149 Jacob Erb, for $7957.03 ; one-third thereof, after paying the debts of the intestate and the expenses of the sale, was to remain in the hands of the purchaser, a charge upon the estate until the death of the widow of the intestate, and the interest thereof in the mean time to be paid to her annually from the 1st of April then next following; and after her death, the principal to be paid to the heirs and legal representatives of the intestate; and the residue of the purchase money to be paid on the 1st of April 1845. The sale was confirmed by the Orphans’ Court on the 18th day of November 1844. The intestate died leaving five children, named Harriet, Henry, Nancy, Peter and Catharine, the last of which died about three years old in February 1845, leaving the others and her mother surviving. The only question raised by the facts of the case is, whether the estate, at the time of Catharine’s death, was real or personal estate. The court below considered it personal, and gave judgment accordingly. In this it is alleged that the court erred. It is certain that, at the death of Catharine, nothing more than a contract had been made for the sale of the estate, and approved by the Orphans’ Court. It had been, in no respect, carried into execution; everything necessary for this purpose remained in fieri; the time for the payment of the first of the purchase money and the making of the deed of conveyance had not come around; nor does it appear that any part thereof whatever was paid. The legal title to the estate, therefore, still remained in the heirs, the same as before the order for the sale of it was made; and as no part of the purchase money was paid, I do not see any good or sufficient ground upon which the character of the estate could be considered as changed, either in law or equity, from real into personal. No portion of the purchase money having been paid by the purchaser, it could not be said with the least shadow of truth or propriety, that the estate, which consisted of land at the time of the sale, was thereby converted into money or anything like personalty. Notwithstanding the sale had been confirmed by the Orphans’ Court, still it was liable to be defeated from more causes, perhaps, than one. Had the purchaser proved wholly unable to pay the purchase money, it will not be pretended, I apprehend, that all that was done towards effecting a sale of the estate could have had the least influence whatever in converting it into personalty. It is material to observe that the contract for the sale was made under the authority and operation of law; and, therefore, without being consummated and carried into full execution, ought not to be considered as changing the primitive character of the estate. Nothing will be considered as if done, in such case, until it is actually accomplished; for, if it were to be so considered, it might, in some instances at least, operate to the prejudice of those interested in the estate. The law, therefore, when it directs the sale of an estate, will take all possible care that the rights of those concerned in it shall not be prejudiced *150 thereby more than can be avoided. It bears no resemblance to the case where by deed or devise it has been agreed or ordered that land shall be converted into money, or money invested in land. There the governing principle is, that what ought to have been done, or is even ordered to be done, shall be considered as if done; because it was the will of the owner of the estate that it should be so. We therefore think that the court below erred in rendering judgment, as if the estate had been converted into personalty. The judgment is reversed, and judgment given in favour of the plaintiff below, Magdalena Erb, for $1, according to the agreement of the parties in the case stated.
Judgment reversed.
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