In re Dull's Estate

• Decision Date: 23 June 1908
• Docket Number: 142
• Citation: 222 Pa. 208,71 A. 9
• Parties: Dull's Estate
• Court: Pennsylvania Supreme Court

71 A. 9

222 Pa. 208

Dull's Estate

No. 142

Supreme Court of Pennsylvania

June 23, 1908

Argued June 1, 1908

Appeal, No. 142, Jan. T., 1908, by Henry B. McCormick and Vance C. McCormick, executors of Hannah C. Criswell deceased, from decree of O.C. Mifflin Co., dismissing exceptions to auditor's report in Estate of C. P. Dull deceased. Affirmed.

Exceptions to report of William W. Uttley, Esq., autitor.

The facts are stated in the opinion of the Supreme Court.

Errors assigned were in dismissing exceptions to auditor's report.

The appeal is dismissed at the cost of appellants and the decree is affirmed.

S. P. Wolverton and M. W. Jacobs, with them S. P. Wolverton, Jr., and Grant Herring, for appellants. -- The intention of the testator, not the logical consequences of the fiction of equitable conversion, determine the widow's share.

The principle of equitable conversion is not a hard and fast rule which must always be rigorously applied with all its consequences, whenever there is a direction to sell real estate: Foster's Appeal, 74 Pa. 391, 397; Yerkes v. Yerkes, 200 Pa. 419, 423; Shedden's Estate, 210 Pa. 82; Painter v. Painter, 220 Pa. 82, 86; but is merely a presumption in accordance with the supposed intention of the testator, which gives way whenever that intention appears: Henszey's Est., 220 Pa. 212; Hunter's Est., 6 Pa. 97.

Testator's intention is to be gathered not only from the words he used, but also from the circumstances under which he used them: Hermann's Est., 220 Pa. 52.

If the language of the testator leaves his intention in doubt, that construction is to be favored which most nearly conforms to the intestate laws: Finney's Appeal, 113 Pa. 11; Dunlap's Appeal, 116 Pa. 500; Hoch's Estate, 154 Pa. 417, 420; Minter's Appeal, 40 Pa. 111; France's Est., 75 Pa. 220.

W. U. Hensel, for appellee. -- The will worked a conversion of the real estate: Hunt's App., 105 Pa. 128; Irwin v. Patchen, 164 Pa. 51; Jones v. Caldwell, 97 Pa. 42; Roland v. Miller, 100 Pa. 47; Lindley's App., 102 Pa. 235; Fahnestock v. Fahnestock, 152 Pa. 56; Vanuxem's Est., 212 Pa. 315; Dalrymple's Est., 215 Pa. 367.

A widow claiming under the will is not to be treated as a mere volunteer, but as a purchaser, and is, therefore, entitled to a fair and liberal construction of the will in her interest: McCallum's Est., 211 Pa. 205; Musselman's Est., 39 Pa. 469; Finney's App., 113 Pa. 11; Clery's App., 35 Pa. 54.

If the power given in the will worked a conversion, the proceeds of the real estate were stamped with the character of the personalty at the death of the testator, for in all cases of conversion the interest of the heir or legatee prior to the election to take as real estate has been regarded as a mere chose in action. At the death of the testator, the realty eo instanti is converted and passes as personalty: Miller v. Commonwealth, 111 Pa. 321; Mellon v. Reed, 123 Pa. 1; Bender v. Luckenbach, 162 Pa. 18; Horner's App., 56 Pa. 405; Evans's App., 63 Pa. 183; Davis's App., 83 Pa. 348; McClure's App., 72 Pa. 414; Klotz's Est., 190 Pa. 152.

No contrary intention on the part of the testator is disclosed. Every manifest intent of the testator was in support of the more liberal provisions for his widow: Wolf's Est., 9 W.N.C. 260; Sharpe's Est., 16 Phila. 403.

However, the exact point in issue in this case has been actually decided, and in both cases the construction has been in favor of the possession of the widow: Williams v. Williams, 1 W.N.C. 54; Barry's Est., 13 Phila. 310.

Before FELL, BROWN, MESTREZAT, POTTER, ELKIN and STEWART, JJ.

OPINION

MR. JUSTICE STEWART:

What interest in his estate did the testator intend that his widow should take? The clause in the will relating to her is as follows: "To my beloved wife, Hannah Wiley Dull, I give, devise and bequeath the furniture, pictures, household goods, horses, carriage, and house and lot in which we now reside, to have and to hold and enjoy as long as she may desire to live there, after which time I direct that they be disposed of by my executors and become part of my estate. I also direct the legal share of my real estate and personal property to be paid to my said beloved wife as her share out of my estate." By the next succeeded item a legacy of $1,500 is given to a relative, and immediately following occurs this residuary clause: "All the immediately following occurs this residuary clause: "All the balance of my estate I devise to my three sisters, Mrs. Hannah Criswell, Mrs. Nancy Macklin and Mrs. Margaret Horning, or their heirs, share and share alike, to be paid by my executors as hereinafter named." What is given the widow is her "legal share." These words, standing alone and unqualified by other expressions and provisions in the will, would indicate with much certainty -- there being no children -- an intention that she should take one half of the personal property absolutely, and the income of one-half of the real estate during life. Since the law seeks to give effect to the testator's intention as derived from the whole will, the inquiry must be to discover whether any other or different purpose is elsewhere expressed, or indicated with equal or greater certainty. The will contains a positive, express and unconditioned direction to the executors to dispose of all the balance of the estate within three years after the testator's death. This balance evidently embraced all the real estate owned by testator at the time of his death, even the house and lot devoted to the widow's use, in the event of her occupancy of it terminating within the period fixed. It is designated as balance, for the reason that in an earlier part of the same clause, testator had directed that a certain sand property of large value, should be retained and operated by the executors for a period not exceeding five years. This property the testator sold in his lifetime; but it having been set apart in the will from the rest, since it was the only piece of real estate thus distinguished, the direction to sell included all else. What, then, is the legal significance of this direction to sell or dispose of all the testator's real estate; and how does it reflect the testator's intention with respect to the share of the widow? The right of a testator to make land money, to effect his own purpose, is unquestionable; and it follows from this right that persons claiming property under a will directing its sale, must take it in the...