Keller v. Harper

Yellott, J.,

delivered the opinion of the Court.

In the Circuit Court for Frederick County, sitting in equity, a bill of complaint was filed by Charles Y. S. Levy, *81 administrator de bonis non cum testamento annexo, of Jacob Keller, deceased, for the purpose of obtaining a judicial •construction of the will of said decedent, who departed this life in the year eighteen hundred and fifty, after having made a testamentary disposition of his property by will and codicil, which were duly admitted to probate by the Orphans’ Court of said county. During his life the testator had contracted two marriages. He had two children by the first marriage and six by the second. The children of the first marriage were both daughters, one of whom, Ann E., married James Harkey, and the other, Eichard Harper. The testator’s second wile survived him. His daughter, Mrs. Harkey, died intestate and without issue in the year 1852 or 1853, and her husband died a few years afterwards, and prior to the decease of the widow of the testator. Mrs. Harper died, leaving two ■children, Eichard K. Harper and Charlotte Snook, who are her heirs-at-law. The husband of Mrs. Harper is now deceased.

As Mrs. Harkey died intestate and without issue, her sister of the whole blood would inherit any real estate belonging to her which she had acquired by purchase and would transmit it by descent, to her heirs-at-law, by dying intestate. The proceeds from the sale of the real estate of Jacob Keller, whether sold during the life-time of his widow, or since her death, have been distributed in the Orphans’ Court of Frederick County, and paid out, except that portion assigned by such distribution to the heirs of Mrs. Harkey. The question now to be determined is, who are the heirs of Mrs. Harkey ? If by the operation of the terms of the testator’s will, his real estate, although not sold until many years after his death, underwent a transmutation and was converted into personalty, there could be no distinction between the whole and the half blood, who would be entitled to share equally in the distribution. If, on the other hand, the real estate was not, in conformity with the *82 principles of equitable conversion, transformed into personalty anterior to an actual sale, then the heirs-at-law of Mrs. Harper, the sister of the whole blood, would be entitled to the distributive share of Mrs. Hartey, who had died intestate and without issue. Art. 93, sec. 131 of the Code.

The appellees, as the descendants of a sister of the whole blood, claim to the exclusion of the children or descendants of the children of the testator’s second wife, on the ground that the will did not so operate as to cause a transmutation or conversion of the realty into personalty prior to the period when the property was sold.

By a fundamental principle in equity, long established and universally recognized, land is considered as converted into money even anterior to a sale when a sale has been directed; and Courts of equity will deal with such real estate as personalty in anticipation of the consummation of the testator’s intention when such intention has be'en unequivocally declared. There must, however, be an imperative and unequivocal direction to sell the real estate, and when the power to sell requires the consent of the parties, interested, there is no conversion until such consent is givefa. And when the sale is dependent upon a contingency, there is no transmutation until the contingency has happened. As said by Lord Cranworth, Chancellor, “ We must consider the property as converted from the time when it ought to have been converted.” Ferrie vs. Atherton, 28 Eng. Law and Equity Rep., 1. And another important rule is that as Courts are averse to sanctioning a change in the quality of an estate, if there is any doubt as to the intention of the testator, the original character of the property will be retained. “ The basis of all the decisions is that the intent of the testator is the great guide in determining the question whether there has been an equitable conversion of the realty into personalty.” Orrick, et al. vs. Boehm, et al., 49 Md., 104 ; Lynn vs. Gephardt, *83 27 Md., 563 ; Hunt vs. Fisher, 1 H. & G., 96 ; Leadenham vs. Nicholson, 1 H. & G., 267 ; Thomas vs. Wood, 1 Md. Ch. Dec., 297; Carr vs. Ireland, 4 Md. Ch. Dec., 251; Craig vs. Leslie, 3 Wheaton, 564 ; Peter vs. Beverly, 10 Peters, 533 .

The learned Judges in the Circuit Court, in a very able and lucid application of the principles established by the authorities cited say:

“ The order or direction in this will, for the conversion of the land into money, cannot be said to be ‘ absolute and imperative ’ in the sense in which those terms are used by the Courts and hy the text writers on the subject. First, the executors must sell if the widow marries ; next, they may sell with the widow’s consent; then they shall sell all the estate, if the specific devisees refuse to take ; and at her death the executors must sell all that had not been previously sold. And the different provisions of the will are put together in such a confused manner, and the time when, and the conditions or contingencies upon which the sale or sales may or must be made, are so uncertain, that the Court must have great doubt that the conversion operated from the death of the testator, and must therefore conclude that as to the property which was sold prior to the decease of the life tenant, the conversion took place at the time of sale, and as to the property sold after the death of the widow, the conversion was at tlie time of her decease. In other trords, the intention to turn tho land into money prior to the sale or decease of the widow, not so clearly appearing as is required in Lynn vs. Gephardt the property retained its original character as just stated, there being no equity between the heirs and next of kin. Mrs. Harkey having died shortly after her father, and before the death of her stepmother, and before the time within which she could elect to take the house and lot devised to her, and before any of the property was sold, and as it still retained its character as land, her share in the estate vested *84 in her as realty. And, as she took an interest different in quality and quantity under her father’s will, from, what she would have taken by descent she took by purchase.” Gilpin vs. Hollingsworth, 3 Md., 190 .

(Decided 24th June, 1885.)

The language of the Circuit Court has been transcribed and adopted because it is apparently impossible to furnish a clearer exposition and application of the principles governing and controlling this controversy. And the final conclusion of the Court is equally correct when it says :

“Upon the facts alleged in these proceedings' and admitted by the parties who have appeared, that Mrs. Harkey died intestate and without issue, and her husband is now dead, her interest under the Code, Art. 47, sec. 19, passed as real estate to her heirs-at-law, who are Eichard K. Harper and Charlotte Snook, the only descendants of Sophia Harper, her only sister of the whole blood.”

There being no error in the ruling of the Circuit Court, its decree must he affirmed ; but as a judicial construction of the will was rendered necessary hy its peculiar phraseology, the costs must be paid out of the fund held by the administrator de bonis non for distribution.

Decree affirmed.