17 D.C. 536 (D.C.D.C. 1888), 1,737, In re Thompson's Estate

Docket Nº:1,737. Probate Docket.
Citation:17 D.C. 536
Opinion Judge:MR. JUSTICE COX:
Attorney:MESSRS. H. T. TAGGART and H. R. WEBB, for plaintiff: MESSRS. MARTIN F. MORRIS and FREDERICK W. JONES, for the heirs.
Case Date:October 08, 1888
Court:Supreme Court of District of Columbia

Page 536

17 D.C. 536 (D.C.D.C. 1888)


No. 1,737. Probate Docket.

Supreme Court, District of Columbia.

October 8, 1888

1. It is the settled law of this District that a widow is not dowable of an equity of redemption.

2. The Orphans' Court has no jurisdiction to apply the doctrine of equitable conversion in its administration of a decedent's estate. The application of that doctrine belongs solely to courts of equity, where the relief should be sought.

3. Where the land is sold by the trustees during the mortgagor's life, the surplus, after satisfying the debt, is payable to him or, if he dies before the time of payment, to his executors, administrators or assigns. If, however, it is sold after his death intestate it is payable to his heirs.

4. The formal directions in a deed of trust to secure a debt as to the application of the surplus in case the property is sold to satisfy the debt are generally superfluous, as the law itself directs the application. When inserted they are often inaccurately expressed, and when such appears to be the case they are to be interpreted as meaning just what the law would direct in case of their omission.

5. The deceased had executed in his lifetime a deed of trust upon real estate to secure a debt, his wife releasing her dower by joining in the deed. By its provisions the trustees were directed in case of default to sell and after satisfying the debt to pay over the residue to the grantor " his executors, administrators or assigns." After his death the property was sold under the trust. Held , that the widow was not entitled to any part of the surplus, but the same was distributable to the heirs.

APPEAL from a decree of the Orphans' Court disallowing a decedent's widow any share in the surplus arising from a sale under a deed of trust.

THE FACTS are stated in the opinion.

MESSRS. H. T. TAGGART and H. R. WEBB, for plaintiff:

If the surplus proceeds of the sale were real estate, the Court below was without jurisdiction to pass said order, because the only proper subject of administration is personalty; if a particular fund arising from the sale of a decedent's real estate continues to be real and not personal estate, it does not form the subject of administration at all. Sweezy vs. Willis, 1 Bradf. 496; and see Spence, Ex'r., vs. Ragan, 9 Gill 481; and Stewart et al vs. Patterson, Ex'r., 8 Gill 58.

It follows that the Court below should have administered the fund according to the quality it actually had in the hands of the administrator, which was that of personal property.

But even upon the assumption that the Orphan's Court had equitable jurisdiction in the premises, the order passed was erroneous; that which had been realty was lawfully and properly converted into personalty, and is in the hands of the administrator in accordance with the declared intention of the grantor, and it should be administered as such.

Where real estate is ordered to be sold, it becomes personalty and shall go accordingly, whether the direction is by will or otherwise. Fletcher vs. Ashburner; Leading Cases in Equity (White & Tudor), vol. 1, part 2, p. 1120 (star page 829).

A careful consideration of the terms of the deed shows that it contains no...

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