Hanson v. Hanson

• Decision Date: 26 October 1910
• Citation: 127 N.W. 1032,149 Iowa 82
• Parties: HANSON v. HANSON ET AL.
• Court: Iowa Supreme Court

149 Iowa 82

127 N.W. 1032

HANSON

v.HANSON ET AL.

Supreme Court of Iowa.

Oct. 26, 1910.

Appeal from District Court, Keokuk County; B. W. Preston, Judge.

Suit in equity for the partition of certain real estate. Trial to the court. Decree for plaintiff, and defendants appeal. Affirmed.Stockman & Baker, for appellants.

W. C. Gambell and J. P. Talley, for appellee.

DEEMER, C. J.

John W. Hanson died testate June 30, 1908, seised of 288 acres of land in Keokuk county. He also left other property in said county which was sold for the payment of debts and charges against his estate. He left surviving five children, who are the parties to this litigation, plaintiff being one of his sons and defendants a son and three daughters. This action was brought to partition the 288 acres of land, and it is conceded that the land itself cannot be equitably divided in kind. The material parts of testator's will with its codicil read is follows:

“It is my will and testament that all of my lawful debts be paid, and the remainder of my estate, real and personal property be divided among my heirs according to the laws of the state of Iowa now in force.”

“I hereby ratify, confirm and reaffirm all the provisions of the said will and in addition thereto I do order, will and direct that my beloved son, Alpheus P. Hanson be appointed executor of my said last will and testament and my estate, and that he be not required to give bond for the performance of his duties as such and as by law provided.”

Defendants contend that there was an equitable conversion by this will and the codicil thereto of the real estate into personalty, and that plaintiff is not entitled to maintain an action for partition. They argue that plaintiff took nothing save his share of the proceeds of the land upon a sale by the executor, and that, no matter what the conclusion regarding the nature of the will, the trial court erred in awarding plaintiff an attorney's fee in the partition action. That a testator may convert his real estate into personalty in such a manner as that the beneficiaries under the will take no part of the real estate, but simply a portion of the purchase price upon a sale by trustee or executor, is, of course, true. When this is done, the realty is constructively converted into personalty, and the beneficiary takes no title to the real estate as such. This is what is known as equitable conversion.

In Darlington v. Darlington, 160 Pa. 65, 28 Atl. 503, it is said: “To work a conversion of real estate into personalty, there must be either (a) a positive direction to sell; (b) an absolute necessity to sell in order to execute the will; or (c) such a blending of realty and personalty by the testator in his will as to clearly show that he intended to create a fund out of both real and personal estate, and to bequeath the same as money. In the first the intention to convert is expressed; in the latter two it is implied. A bare power of sale, like a discretionary power given in a will, does not work a conversion until exercised.” Again, it has been said in effect that: “Equitable conversion arises from an express, clear, and imperative direction, or from a necessary implication of such express direction. The question of conversion is one of intention, and the question is, is it the testator's intent to have his real estate converted into personalty immediately upon his death? [citing Clift v. Moses, 116 N. Y. 144, 157, 22 N. E. 393]. A will does not effect the equitable conversion of realty into personalty because of a naked power of sale given to the executors, where the amount of the legacies does not exceed the value of testator's personal property. In re Cobb's Estate, 14 Misc. Rep. 409, 36 N. Y. Supp. 448, 449.”

Going now to the will with its codicil, it will be noticed that neither the executor nor any other party is given express power to sell the real estate. An executor was named in the codicil, but he was given no other power than the law gives to such a person, unless it be inferred from the will itself. The original will provided that, after the payment of debts, the remainder of testator's estate, both real and personal, should be divided among his heirs according to the laws of Iowa then in force. No sale is to be implied from this clause of the will. Real estate is to be divided among the heirs in kind, and no sale is necessary either by an executor or trustee. Indeed, without express or necessarily implied power, an...