Estate of Mustin

• Decision Date: 29 January 1900
• Docket Number: 226
• Citation: 45 A. 313,194 Pa. 437
• Parties: Estate of John Mustin, Deceased. Appeal of Ida C. Lloyd, Executrix and Trustee of John Mustin, Deceased
• Court: Pennsylvania Supreme Court

45 A. 313

194 Pa. 437

Estate of John Mustin, Deceased. Appeal of Ida C. Lloyd, Executrix and Trustee of John Mustin, Deceased

No. 226

Supreme Court of Pennsylvania

January 29, 1900

Argued January 10, 1900

Appeal No. 226, Jan. T., 1899, by Ida C. Lloyd, from decree of O.C Phila. Co., Jan. T., 1893, No. 180, on petition for citation. Affirmed.

Petition for citation.

From the record it appeared that the Mechanics' National Bank of Philadelphia filed a petition as a creditor of the estate of John Mustin, deceased, to the amount of $20,549.14 praying that the court should order and decree that executors of the deceased should mortgage or sell the real estate of decedent in order to pay the petitioner's claim.

The petition was based upon the theory that under the will of the testator there was a conversion of the real estate into money.

ASHMAN J., filed the following opinion:

On the question of the character of the estate in the hands of the accountants, as realty or personalty, depends the effectiveness of the order to pay and of the present petition to sell or mortgage. If the property is real estate, it is free by lapse of time from the lien of the debts set out in the petition, and it may not be sold or mortgaged at the instance of creditors. If it is personal estate, it is assets for the payment of debts of the decedent. That it has been hitherto treated as real estate by the parties and even by the court in the disposition made of the rents is not conclusive, because the question of conversion is now raised for the first time. The will must therefore be resorted to and its provisions, we think, cannot be reconciled with the absence of an intent on the part of the testator to distribute his estate as money and not as land. It begins with a specific bequest of personal effects, followed by a legacy of $3,000, and it gives the residue of realty and personalty, in trust after life estate in the wife, to pay a legacy of $10,000, to set aside the sum of $120,000, and eventually to pay it in three separate amount of $40,000 absolutely, and in trust, if a balance should still remain to pay additional pecuniary legacies aggregating $8,000. In case the estate should not then be exhausted, the trustee was directed to pay to a charity $2,000, and to divide and pay over any final balance in three equal parts. Both at the time of the execution of his will and at the time of his death, the testator's personal property was inadequate to pay these gifts; but we concede that this fact was not conclusive, because his estimate of its value may have been an exaggerated one. We read his intent in his testamentary language. He treats his real and personal estate as a blended fund, out of which legacies to the amount which he evidently thinks may exhaust the fund are to be paid. If any balance after their payment shall, however, remain, he directs the payment of additional bequests, and if there should still remain a balance, he provides a sum for a charity; and he finally directs that if these original and added gifts...