Macer's Appeal

3 Walker 107

• Court: Supreme Court of Pennsylvania
• Decided: January 15, 1881
• Docket: No. 22
• Status: Published

Opinion

The Supreme Court affirmed the decree of the Orphans’ Court on May 1st, 1882, in the following opinion, per

Mercur, J.

This contention is between claimants to the estate of Isaiah Gilmore. He died intestate, unmarried and without issue. The fund in question is the proceeds of a mortgage which he owned at the time of his death. This mortgage was given on a sale of laud devised to him by his mother, Harriet Gilmore. She made him the residuary devisee of all her real and personal estate, but directed the property “tobe and remain under the care and direction of a guardian for his use and benefit,” and appointed Wm. S. Jayne executor of her will “to see that the same is fully carried into effect.” She further appointed said J ayne “to be the guardian perpetually over the property devised “to my son Isaiah, with full power and authority to appoint a “successor in case of death, removal or any inability to longer “serve, to see that his estate hereby devised, both real and. “personal, be properly taken care of, and not permit him to “squander the same in any useless manner or enterprise, as far “as it can reasonably be done by the guardian, bu t that it may “be all strictly applied for his benefit during his lifetime in such “manner as shall, be for his comfort;, and further I hereby “authorize and empower my executor if it should at any time ■“become necessary under any circumstances hereafter in his “judgment, or that of his successor, to sell all my real estate “and secure the avails on bond and mortgage, at interest, for “the use of my sou, Isaiah, during his lifetime.”

Letters testamentary were issued to Jayne and he entered Upon and discharged the duties of executor and also of testamentary trustee of the estate. Under the power contained in the will, and during the life of Isaiah, Jayne, as executor, sold -and conveyed the real estate thus devised to Isaiah. In part payment therefor the mortgage was given, and the portion thereof remaining unpaid at the death of Isaiah produced the fund now in contention. It is claimed by the appellants that the mortgage having been given for lands devised to Isaiah by his mother, the fund stands as real estate and is to be distributed accordingly. It may be conceded that the will does not contain such positive and explicit directions to sell the real estate as to work a conversion on the death of the testatrix. A mere power to sell without that power being exercised does not work a conversion. This will gave no power or discretion to Isaiah in regard to the sale. Loth power and discretion were given to the executor. His judgment alone was to determine the necessity or propriety of making a sale, and if he sold he was given full power to convert the real estate into personal property. In strict conformity with authority contained in the will, he did make the conversion. Thenceforth Isaiah ceased to own the real estate ; but held the demand for money secured by the mortgage. It was clearly personal estate thereafter. As such it went to the appellee, who is one degree nearer than the appellants to the intestate. The fact that the appellants are of the blood of Harriet Gilmore, and the appellee is not, gives them no superior right to the fund, which is clearly the personal estate of Isaiah Gilmore, The principle that. where a power to sell real estate is given, and a sale has been made under the power, the proceeds become personal property is clearly affirmed in Wharton vs. Shaw, 3 W. & S., 124, and in Pennell’s Appeal, 20 Pa., 517. The testatrix used no' restrictive words to prevent Isaiah from disposing of the estate by will, or if he died without will to prevent his heirs at law from taking it. The appellee is such heir.

Decree affirmed and appeal dismissed at the costs-of the appellants.