OPINION,
Mr. Justice Clabk :
The first question which arises in this case is whether or not, by the terms of the will of Llewellyn Howell, Sr., deceased, there was an equitable conversion of the realty into personalty.
The use of the land was devised to his wife, Mary, until his son James should arrive at the age of twenty-one years; “ at which time,” in the words of the will, “the place to be sold by my executors, and the two thirds of the proceeds to be equally divided to and amongst my heirs, and the one third to be at interest for the use of my said wife; ” “ but,” says the testator, “ if in the opinion of my said wife, such sale would be prejudicial to her interest, she may detain the sale, and possess the land, by paying two thirds of the rent, as long as she sees cause, or during her widowhood; but, if she should marry, she is to have an equal part with one of the children; all the surplus property, which will be remaining at the death of my said wife, to be sold, and the proceeds equally divided to and amongst my children.” It is conceded, on all hands, that the first of these clauses, if it had not been qualified by the second, would have worked a conversion; but the plaintiffs in error contend that the two clauses, taken together, cannot have that effect. It is certainly true that a direction to sell must be absolute and unconditional: Stoner v. Zimmerman, 21 Pa. 394. It must be imperative, not contingent or discretionary merely, or a conversion does not take place until the sale is actually made: Peterson’s Appeal, 88 Pa. 897; Hunt’s Appeal, 105 Pa. 141. But the language of tins will is imperative. The sale of the land is in no way dependent upon the discretion of the widow, excepting as to the time when it may be made. She has power “ to detain ” the sale, but not to defeat it. -Sooner or later, if the directions of the will are pursued, the sale must take place. She might have “detained” the sale during her lifetime, but the power to sell was not contingent of conditioned upon her consent. At her death, therefore, the direction was absolute, and this was sufficient: Allison v. Wilson, 13 S. & R. 330; McClure’s Appeal, 72 Pa. 414.
[15]*15case readily distinguishable from those cited by the plaintiffs in error: Henry v. McCloskey, 9 W. 145, and Stoner v. Zimmerman, supra, where the sale was expressly conditioned upon the consent of the testator’s wife. That consent, of course, she had the power to withhold; and in that event there was no authority to sell, either in her lifetime or after her death. The power in both cases was contingent, and it was held that there was therefore no conversion.
'When the case was here before it was meagerly.presented in the proofs. We then said: “The provision for his children was a bequest of the proceeds of the sale of the land by his executors, and in a devise of the land itself it was the right of the parties interested in the event, at their election, to accept the land unconverted; and this, it is not denied, was done. Thereby they became tenants in common of the lands, subject to the estate and right of the widow therein.” Both, parties then seemed to assume the equitable conversion of the land into money, and that the heirs had elected to take the land as land instead of the money, and we disposed of the case accordingly.
Now, however, there is evidence tending to Show that the first decisive act of the heirs towards a re-conversion was the parol partition in 1840 or 1841; that this partition was a matter between John, Philip, and Llewellyn, Jr., only; that these three had previously purchased the shares of the other heirs, and with the widow’s consent divided the land between them. The only one of these transactions we have anything to do with, in this case, is the alleged purchase of James’ interest, which was made in 1840 or 1841, at or about the time of the partition. The tendency of the proofs is to show that it was before the partition; as James, although probably.30 years of age, was present, took no part in the partition, and does not appear to have made any claim to the land. It appears that James had previously married, and was about to remove to the Graham farm, and the plaintiffs’ allegation is that at this time Llewellyn purchased James’ interest in his father’s estate. Andrew Howell, one of the brothers, testifies as follows: “ I left the homestead in April, 1832. I moved to Rostraver township, Westmoreland county. In 1831, when I was going to leave, — the year before I left, — he (Llewellyn) told me [16]*16he would give me a wagon, get got me a lot of harness, and rigged me out for farming, and my two horses. I got a couple of horses from him. When I moved away, he gave me a cow and a shoat, or a young sow. He gave me these things for the interest I claimed to have in my father’s farm. He purchased all the girls’ interests. I cannot tell when my brother James left home. I do not exactly know what year my brother James got married. He must have moved on the Graham farm about 1840' or 1841. That was when he left home after he was married.
“ Q. Do you know, of your own knowledge, or any conversation with your brother James, whether or not he had disposed of his interest in his father’s farm? A. He told me he had, and that Llewellyn was helping him to start on. Graham farm, the same as he helped me. I had this conversation with him here, in West Newton, shortly after he moved to the Graham farm. After Llewellyn died, James and had a conversation here in town. He allowed to me that Llewellyn had given me more than he had him. This was after Llewellyn died, and we knew the contents of his will.
“ Q. What gave rise to this conversation ? A. We began to talk what Llewellyn had given him and me. Llewellyn had given me the part that had the buildings on. He complained that I had got more than I ought to have got, getting the buildings. He gave no reason, only that I had got the half of farm and the buildings.”
Daniel Kiehl.testifies that shortly after James was married, and after he had moved on the Graham farm, James told him that his brother Llewellyn had bought his interest in the old farm — in his father’s farm. James S. Patterson testifies that James told him several times that he had sold out his interest; that he told him this just after he was married; also, after Llewellyn’s death and at another time, after James had recovered the 50 acres in the ejectment; but that he said he had given no release. This witness having been requested to state particularly the conversation between himself and James, after James had acquired the 50 acres in the ejectment suit, says: “Well, he commenced the.conversation in this way, in the woods there : He was telling me about what had happened before he came in possession of it; that John and Llewellyn had paid him, but they had not got any release from him.
[17]*17“Q. He said Llewellyn had paid him ? A. Yes, sir; but had not got a release before Llewellyn died, and then, when Llewellyn died, John wanted him to sign a release, and he would not sign it. That was just what was said.
“Q. Did he state the reason why he would not sign it? A. He thought John had not any right to it in his name ; he thought it had to be in Llewellyn’s name also.”
The purchase of James’ interest by Llewellyn is established, if it is established at all, wholly by parol proof. There was no writing between them, and it is contended that the transaction falls within the provisions of the statute of frauds.
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OPINION,
Mr. Justice Clabk :
The first question which arises in this case is whether or not, by the terms of the will of Llewellyn Howell, Sr., deceased, there was an equitable conversion of the realty into personalty.
The use of the land was devised to his wife, Mary, until his son James should arrive at the age of twenty-one years; “ at which time,” in the words of the will, “the place to be sold by my executors, and the two thirds of the proceeds to be equally divided to and amongst my heirs, and the one third to be at interest for the use of my said wife; ” “ but,” says the testator, “ if in the opinion of my said wife, such sale would be prejudicial to her interest, she may detain the sale, and possess the land, by paying two thirds of the rent, as long as she sees cause, or during her widowhood; but, if she should marry, she is to have an equal part with one of the children; all the surplus property, which will be remaining at the death of my said wife, to be sold, and the proceeds equally divided to and amongst my children.” It is conceded, on all hands, that the first of these clauses, if it had not been qualified by the second, would have worked a conversion; but the plaintiffs in error contend that the two clauses, taken together, cannot have that effect. It is certainly true that a direction to sell must be absolute and unconditional: Stoner v. Zimmerman, 21 Pa. 394. It must be imperative, not contingent or discretionary merely, or a conversion does not take place until the sale is actually made: Peterson’s Appeal, 88 Pa. 897; Hunt’s Appeal, 105 Pa. 141. But the language of tins will is imperative. The sale of the land is in no way dependent upon the discretion of the widow, excepting as to the time when it may be made. She has power “ to detain ” the sale, but not to defeat it. -Sooner or later, if the directions of the will are pursued, the sale must take place. She might have “detained” the sale during her lifetime, but the power to sell was not contingent of conditioned upon her consent. At her death, therefore, the direction was absolute, and this was sufficient: Allison v. Wilson, 13 S. & R. 330; McClure’s Appeal, 72 Pa. 414.
[15]*15case readily distinguishable from those cited by the plaintiffs in error: Henry v. McCloskey, 9 W. 145, and Stoner v. Zimmerman, supra, where the sale was expressly conditioned upon the consent of the testator’s wife. That consent, of course, she had the power to withhold; and in that event there was no authority to sell, either in her lifetime or after her death. The power in both cases was contingent, and it was held that there was therefore no conversion.
'When the case was here before it was meagerly.presented in the proofs. We then said: “The provision for his children was a bequest of the proceeds of the sale of the land by his executors, and in a devise of the land itself it was the right of the parties interested in the event, at their election, to accept the land unconverted; and this, it is not denied, was done. Thereby they became tenants in common of the lands, subject to the estate and right of the widow therein.” Both, parties then seemed to assume the equitable conversion of the land into money, and that the heirs had elected to take the land as land instead of the money, and we disposed of the case accordingly.
Now, however, there is evidence tending to Show that the first decisive act of the heirs towards a re-conversion was the parol partition in 1840 or 1841; that this partition was a matter between John, Philip, and Llewellyn, Jr., only; that these three had previously purchased the shares of the other heirs, and with the widow’s consent divided the land between them. The only one of these transactions we have anything to do with, in this case, is the alleged purchase of James’ interest, which was made in 1840 or 1841, at or about the time of the partition. The tendency of the proofs is to show that it was before the partition; as James, although probably.30 years of age, was present, took no part in the partition, and does not appear to have made any claim to the land. It appears that James had previously married, and was about to remove to the Graham farm, and the plaintiffs’ allegation is that at this time Llewellyn purchased James’ interest in his father’s estate. Andrew Howell, one of the brothers, testifies as follows: “ I left the homestead in April, 1832. I moved to Rostraver township, Westmoreland county. In 1831, when I was going to leave, — the year before I left, — he (Llewellyn) told me [16]*16he would give me a wagon, get got me a lot of harness, and rigged me out for farming, and my two horses. I got a couple of horses from him. When I moved away, he gave me a cow and a shoat, or a young sow. He gave me these things for the interest I claimed to have in my father’s farm. He purchased all the girls’ interests. I cannot tell when my brother James left home. I do not exactly know what year my brother James got married. He must have moved on the Graham farm about 1840' or 1841. That was when he left home after he was married.
“ Q. Do you know, of your own knowledge, or any conversation with your brother James, whether or not he had disposed of his interest in his father’s farm? A. He told me he had, and that Llewellyn was helping him to start on. Graham farm, the same as he helped me. I had this conversation with him here, in West Newton, shortly after he moved to the Graham farm. After Llewellyn died, James and had a conversation here in town. He allowed to me that Llewellyn had given me more than he had him. This was after Llewellyn died, and we knew the contents of his will.
“ Q. What gave rise to this conversation ? A. We began to talk what Llewellyn had given him and me. Llewellyn had given me the part that had the buildings on. He complained that I had got more than I ought to have got, getting the buildings. He gave no reason, only that I had got the half of farm and the buildings.”
Daniel Kiehl.testifies that shortly after James was married, and after he had moved on the Graham farm, James told him that his brother Llewellyn had bought his interest in the old farm — in his father’s farm. James S. Patterson testifies that James told him several times that he had sold out his interest; that he told him this just after he was married; also, after Llewellyn’s death and at another time, after James had recovered the 50 acres in the ejectment; but that he said he had given no release. This witness having been requested to state particularly the conversation between himself and James, after James had acquired the 50 acres in the ejectment suit, says: “Well, he commenced the.conversation in this way, in the woods there : He was telling me about what had happened before he came in possession of it; that John and Llewellyn had paid him, but they had not got any release from him.
[17]*17“Q. He said Llewellyn had paid him ? A. Yes, sir; but had not got a release before Llewellyn died, and then, when Llewellyn died, John wanted him to sign a release, and he would not sign it. That was just what was said.
“Q. Did he state the reason why he would not sign it? A. He thought John had not any right to it in his name ; he thought it had to be in Llewellyn’s name also.”
The purchase of James’ interest by Llewellyn is established, if it is established at all, wholly by parol proof. There was no writing between them, and it is contended that the transaction falls within the provisions of the statute of frauds. We have already said that, by the terms of the will of Llewellyn Howell, Sr., deceased, there was an equitable conversion of the realty into personalty; that the interest of the heirs was therefore personal, not real; the title to the land was in the executors, and the heirs were entitled to the proceeds only. It is true that, if all the parties in interest had joined with James, equity would have allowed them to take the land in lieu of the money; not that they had any equitable interest in the land, under the law, but, being the only parties beneficially interested, they had power to control the event. In such a case, the heirs take title, not by the will, but by their own act. Their election to take the land is an appropriation of their interests under the will to the acquisition of the land, as upon a purchase, and an equitable estate or title is thereby created in them, which chancery will execute by compelling a conveyance. But until the act of election the heirs have no estate or title which would be the proper subject of a lien, either by judgment or by mortgage, or which could be taken in execution. In Bailey v. Allegheny N. Bank, 104 Pa. 425, a mortgage executed under such circumstances was treated as a provisional election to take the land, contingent upon the agreement of the other heirs to unite therein, and in the meantime as an equitable assignment of the interest of the heir as personalty, which, after partition, attached as a lien to the purpart allotted to the mortgagor in severalty. To the same effect is Horner’s Appeal, 56 Pa. 405. In all the cases, however, the interest of the heir prior to the election to take as realty, has been regarded as a mere chose in action, and we can discover no reason why it cannot be released or assigned [18]*18in tbe same manner as other dioses in action. No ease has been brought to our notice in which it has been held that such an assignment falls within the provisions of the statute of frauds, and must therefore be in writing. The statute of frauds applies to all leases, estates, or interests in lands, tenements, or hereditaments, and its provisions have been carried to every interest, legal or equitable, therein; but it can have no application in the transfer of personal property.
Whether or not James Howell sold his interest under Ms father’s will to Llewellyn, his brother, as alleged, was therefore a question of fact, to be resolved by the jury, and, as there was evidence from which we think the. fact could be fairly inferred, the question was properly submitted. The evidence of the purchase of the shares of the other heirs, it is true, is very slight, but that is not a material fact in this case. It is the purchase of James’ interest which is controverted here. That John afterwards took releases from his brothers and sisters to confirm his title is of little consequence, if the purchase of James’ interest by Llewellyn was established to the satisfaction of the jury.
There was evidence, Llewellyn, claiming to own all the interests of their brothers and sisters, in 1840 or 1841, treating the proceeds of the land as land, made a parol partition ; Llewellyn taking one portion thereof according to a line marked on the ground in severalty, and John and Philip the residue; and that they possessed and held the same, pursuant thereto, until the time of Llewellyn’s death in 1851, This partition was made in the lifetime of the widow, while she lived upon the land; and, as the purparts were kept and cultivated by the brothers named, respectively, according to the line designated, without objection on her part, and without payment of rent by her, as provided in the will, it may well be inferred that the partition was made with her consent.
It is contended, however, that the Sr., and that of Llewellyn Howell, Jr., taken together, show title in James Howell for three sixteenths of the whole tract, whilst the action of ejectment exhibits a recovery by James of 50 acres in severalty, in lieu of his undivided interest in the whole; that, this being the condition of the record, Mellon [19]*19and Scott were bona Me purchasers, to that extent, without notice of the parol arrangement between James and Llewellyn, if any existed, and that they are upon that ground entitled to recover according to the showing of the record. The fallacy of this argument consists in this : that the will of Llewellyn Howell, Sr., did not exhibit any title whatever in James Howell. Under that will he was a legatee merely of a share of the proceeds in the land. This was certainly sufficient to put purchasers on inquiry as to the condition of the title, especially as James had abandoned the possession, and the land had been in the exclusive occupancy of bis brothers, according to a certain line of division marked on the ground and recognized between them, from the year 1841 to the time of their purchase in 1866. The evidence of this partition was not res inter alios acta. Ft was relevant to the issue in this case, in so far as it tended to establish title in James Howell under the will of Llewellyn Howell, Jr., deceased, and in that way to explain his recovery in the ejectment.
Upon a careful examination of the whole case, we think the errors assigned are not sustained, and that the ease was properly submitted to the consideration of the jury.
The judgment is affirmed.