Appeal of Philadelphia

Supreme Court of Pennsylvania

Appeal of Philadelphia

4 A. 4, 112 Pa. 470, 1886 Pa. LEXIS 299

CourtSupreme Court of Pennsylvania

DecidedMay 10, 1886

StatusPublished

Cited by14 cases

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Bluebook

Appeal of Philadelphia, 4 A. 4, 112 Pa. 470, 1886 Pa. LEXIS 299 (Pa. 1886).

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Opinion

Mr. Justice Paxson

delivered the opinion of the court, May 10th, 1886.

We are of opinion that the will of Jacob F. Silber worked a conversion of his real estate. By the fourth item of said will the testator said: “I desire all my other estate, real, personal or mixed, shall, as soon after my decease as practicable, be sold, and the proceeds arising therefrom be invested in first bonds and mortgages,” &c., &c. We regard this as a direction to sell. The words “ I desire ” are the equivalent of the words “ I will ” that my real estate shall be sold, &c., while the added words, “ as soon after my decease as practicable,” left no discretion to his executors excepting as to the matter of time. It does not authorize them to postpone a sale altogether. Besides, he makes no other disposition of the real estate.

[475]*475The auditing judge did not discuss the question of equitable conversion, for the reason that the sale by the executors worked an actual conversion, and the money having been brought into court was to be distributed as money, and was liable for the testator’s debts, of which the claim of the appellant was one. In this we think he was clearly right, and that it. was error in the learned court to sustain the exceptions to his adjudication.

Decree reversed at the costs of the appellee, and the adjudication is confirmed.

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Mr. Justice Paxson

delivered the opinion of the court, May 10th, 1886.

We are of opinion that the will of Jacob F. Silber worked a conversion of his real estate. By the fourth item of said will the testator said: “I desire all my other estate, real, personal or mixed, shall, as soon after my decease as practicable, be sold, and the proceeds arising therefrom be invested in first bonds and mortgages,” &c., &c. We regard this as a direction to sell. The words “ I desire ” are the equivalent of the words “ I will ” that my real estate shall be sold, &c., while the added words, “ as soon after my decease as practicable,” left no discretion to his executors excepting as to the matter of time. It does not authorize them to postpone a sale altogether. Besides, he makes no other disposition of the real estate.

[475]*475The auditing judge did not discuss the question of equitable conversion, for the reason that the sale by the executors worked an actual conversion, and the money having been brought into court was to be distributed as money, and was liable for the testator’s debts, of which the claim of the appellant was one. In this we think he was clearly right, and that it. was error in the learned court to sustain the exceptions to his adjudication.

Decree reversed at the costs of the appellee, and the adjudication is confirmed.

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4 A. 4, 112 Pa. 470, 1886 Pa. LEXIS 299, Counsel Stack Legal Research, https://law.counselstack.com/opinion/appeal-of-philadelphia-pa-1886.

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