Gilbreath v. Cosgrove

• Decision Date: 01 May 1916
• Citation: 185 S.W. 1181,193 Mo.App. 419
• Parties: MARY W. GILBREATH et al., Respondents, v. JOHN COSGROVE, et al., Appellants
• Court: Kansas Court of Appeals

185 S.W. 1181

193 Mo.App. 419

MARY W. GILBREATH et al., Respondents, v. JOHN COSGROVE, et al., Appellants

Court of Appeals of Missouri, Kansas City

May 1, 1916

Appeal from Cooper Circuit Court.--Hon. Jack G. Slate, Judge.

REVERSED AND REMANDED (with directions).

Judgment reversed and cause remanded.

W. M Williams and John Cosgrove for appellants.

W. F Johnson for respondents.

OPINION

ELLISON, P. J.

--John A. Waller died possessed of real and personal property which he disposed of by will. He named the defendant as executor of this will and he left a widow and two adult children. By provision of the will, he devised to the two children 162 acres of land known as his "Home Farm." He had one other tract of land, consisting of 196 acres, which he disposed of by "Item Third" of his will in the following language:

"I direct my executor hereinafter named to sell, for cash the following described real estate: (Describing it). And I further direct my executor to pay my wife out of the proceeds arising from the sale of said one hundred ninety six and 78/100 (196.78) acres of land eight thousand (8000) dollars and to divide the remainder of said amount, after paying my wife said eight thousand (8000) dollars between my daughters, Mary W. Gilbreath and Laura Warren, equally, share and share alike, that is one-half to each."

All the balance of his estate was to be divided equally between his wife and two children; and the provisions thus made for his wife were declared to be in lieu of dower, homestead and marital rights in his estate.

The testator died in January, 1915, and in July following the two children brought the present action against the executor and the widow and recovered judgment in the circuit court.

The petition alleged and the proof showed the will contained the provisions just stated. It was then alleged, and it was proven, that plaintiffs tendered the $ 8000 which defendant, as executor, was directed to pay her out of the proceeds of the sale of the 196 acres of land. It was also alleged: "That they elect to take the aforesaid real estate in lieu of the proceeds of the sale thereof." It was then alleged that defendant Cosgrove has threatened to sell and is attempting to sell the land, notwithstanding plaintiffs' election to take it in lieu of the proceeds of a sale. The prayer of the petition was that the widow "be brought into court to receive said $ 8000 in discharge of the charge or lien in her favor on said real estate, and that the executor Cosgrove, the trustee of the power of sale be forever enjoined from selling said real estate," and for such further relief etc.

The direction to the executor to sell the real estate converted it into money, under the rule in equity which considers that done that is directed to be done. This is called an equitable conversion from the original character of the property into that class in which it is directed to be placed.

Following along with this rule is another, that, before the actual conversion by a sale, the beneficiaries may reconvert the property back to its original character by electing to take it in that character, instead of the substituted character. [Griffith v. Witten, 252 Mo. 627, 161 S.W. 708; Nall v. Nall, 243 Mo. 247, 147 S.W. 1006.] The doctrine of conversion and reconversion was argued by counsel at length; but as that doctrine is so clearly stated and fully discussed by our Supreme Court in those cases, we need do no more than refer to what is there said.

An important point arising here, is, has there been a proper election in the circumstances of this case? The question was discussed in Williams v. Lobban, 206 Mo. 399, 414-419, 104 S.W. 58, and by this court in Compton v. McMahan, 19 Mo.App. 494, 503, but not decided. The weight of authority is that all of the beneficiaries must elect; less than all not having the power to reconvert the property. [McDonald v. O'Hara, 144 N.Y. 566, 39 N.E. 642; Bank of Ukiah v. Rice, 143 Cal. 265, 273, 76 P. 1020; Baker v. Copenbarger, 15 Ill. 103; Ebey v. Adams, 135 Ill. 80, 86, 25 N.E. 1013; Harcum v. Hudnall, 14 Gratt. 369, 376; High v. Worley, 33 Ala. 196, 199; Willing v. Peters, 7 Pa. 287; Wayne v. Fouts, 108 Tenn. 145, 156, 65 S.W. 471; Craig v. Leslie, 3 Wheat. 563, 579, 4 L.Ed. 460; Holloway v. Radcliffe, 23 Beavan 163, 172; Fletcher v. Ashburner, 1 Brown Ch. 497; 1 Beach Mod. Eq. Jur., sec. 537.]

But this rule would not apply to instances where the election of less than all could not possibly injure those not joining in the election. [3 Pomeroy Eq. Jur., sec. 1176; Bank of Ukiah v. Rice, 143 Cal. 265.]

Applying this rule and the exception just stated, to the facts before us, we believe a proper election to reconvert the property has been made, notwithstanding the widow has refused to join. Accepting the provisions of the will as she has, her sole interest in the land is the specific sum of $ 8000, and that amount is offered and must be paid to her, or into court for her, under the allegations in the petition, before the court should grant plaintiffs' prayer. There can be no possible reason in allowing to her a power to veto the effort to reconvert the property when her entire interest in it is satisfied.

But it would be manifest injustice to permit the execution of the decree of the trial court without providing therein for the payment of the defendant's commission. The property directed by the testator to be sold, assumes the character into which it is directed to be converted immediately upon the testator's death (Griffith v Witten, 252 Mo. 627, 646, 161 S.W. 708), and it devolves upon the administrator or executor, or upon the heir, as would any other property of the kind into which it is thus converted. That is, if money is directed to be converted into land, such money will not pass to the executor or administrator, but will assume its converted character of land and devolve upon the heir; and if the property be land directed to be converted into money, it will be regarded as money and "goes to his personal representative" as other personal assets of the estate. [1 Pomeroy Eq. Jur., sec. 371.] It "is regarded and treated as money. . . . It is therefore always personal assets in the hands of executors and administrators for which they are accountable." [3 Pomeroy Eq. Jur., sec. 1164.] The conversion "will take place from the death of the testator, when eo instanti the shares pass as personalty." [1 Beach Modern Eq. Jur., secs. 529, 527, 521, 530.] In Kane v. Gott, 24 Wend. 641, 659, Judge COWEN, in speaking of this question, said (italics his) that: "It is of the nature of such a trust that immediately on the testator's death, and for all purposes of testamentary disposition, the real becomes personal property in every sense; and must be treated precisely as if it had been so before." And such is the effect of all the cases. [Hutchings v. Davis, 68 Ohio St. 160, 173, 174, 67 N.E. 251; Perkins v....