Gross v. Sheeler

12 Del. 280

• Court: Superior Court of Delaware
• Decided: September 15, 1885
• Status: Published

Opinion

Comegys, C. J.:

The testator, who was the owner of the house and lot 915 Market street, Wilmington, by his will, which is part of the record, after directing the property to be rented by his executor and the proceeds to be annually applied, first, to keeping the property in order, and the balance, or the whole, as the case might be, appropriated by the guardian of his son, William E. Benner, to clothing and educating him during his minority, devised, in substance, that when his son came of age, the property should be sold by his executor and the proceeds, after expense of sale, etc., be divided thus—“ to my daughter, Melissa Ann Boers, intermarried with J. Augustus Boers, the income of six hundred dollars annually during her natural life, and at her death the principal sum to her heir or heirs in equal proportions, etc.

It will be observed at once in reading the will, as recited in the case, that this devise is different in language from that used in disposing of the residue of the fund arising from the sale. In the case of Caroline Sheeler, there is no bequest of the income of the principal mentioned in the devise with respect to her, but the bequest is to her and her heirs—clear words of fee-simple. So in the disposition of the balance in favor of the son, the direction is that it is to be “ invested in real estate or paid over to him if required.” Then comes these words—“this balance or remaining sum I give and bequeath to him and his heirs.”

In view of this, I am unable to see how the conclusion can be avoided that the testator only meant to give his daughter Melissa the income of six hundred dollars of the proceeds during her lifetime, and the principal at her death to others, who were to take independent of her. Such intention seems perfectly manifest. What is there then in the way of the court deciding accordingly ? The plaintiff says—the rule in Shelley’s case; a rule which has done more to produce litigation, and (when sustained) thwart the actual purpose of a testator than all the other arbitrary rules combined. While it remains a rule of law and of property this court must abide by it; but where in the construction of a will it is not clearly and indisputably applicable, no countenance should be given to it.

It is certainly true that if the devise in this case were of the land itself, the plaintiff would take a fee simple; it would then be to her for life, and after her death to her heirs, which, by the rule referred to would operate a fee simple. But this is not a devise of the land, for it is ordered to be sold on the attainment by the son of his majority, and the proceeds divided and disposed of as directed by the will.

Although it is true, that where real estate is directed to be sold and the proceeds paid to certain beneficiaries, they may take the land itself in lieu of such proceeds, and thus become seized of the legal estate, and entitled to possession, yet until that be done, they cannot be said to have title to the property except in the sense of keeping it from becoming abeyant, if they be heirs at law. The direction by the testator to sell the property, and sale made accordingly (as in this case) is a conversion of it, and the proceeds become personalty, for the purposes mentioned, as if they had always been such. The case of Sharply and wife v. Townsend’s Exr., 4 Harrington, 336, shows this. When the sale took place, then the proceeds became personalty in the hands of the executor for the specific purpose declared by the testator. This much is plain; in fact there does not seem to be any contention between the parties about it.

The claim of the plaintiff rests wholly upon the rule in Shelly’s case. I have already said in effect that if the subject of the action were land, and not personal estate, she would be entitled to it in fee simple according to that rule. But it is not land, but money.

The learned counsel for the plaintiff, in support of their contention, have referred to us a number of cases ; but all of them except those in Pennsylvania, simply sustain an ancient rule that personalty cannot be entailed, and that the tenant for life takes the absolute interest; the rule in Shelly’s case has nothing to do with them. The citations from the Pennsylvania Reports appear to be all of them, cases of real estate, as to the application of the rule to which there can be no mistake.

No case has been cited by the plaintiff’s counsel where it has ever been held that the rule in Shelley’s case applies to personalty; and we have the emphatic language to the contrary, if it were needed, of a lately deceased Master of the Rolls, Sir George Jessel, one of the greatest lawyers of this century, pronounced in 1878 in the case of Smith v. Butcher, L. R. Chan. Div., 10, where the testator had desired the rest of his personal property, of debts due him, money in the funds or otherwise, for the sale of his furniture, books, or from any other source, should be placed in the public funds, “and the interest arising therefrom to be equally divided among the children of my brother during their lives, and on the decease of either of them, his or her share of the principal, to go to his or her lawful heir or heirs.” He said, after discussing the question, in his manner, “ I hold that the testator has used expressions which mean that the right heirs of the children are to take, and I so decide.”

I am of opinion that, in the ease before us, the plaintiff is not entitled to the sum of six hundred dollars mentioned in the bequest concerning her, but only its income for her life.