Perkins v. Coughlan

• Decision Date: 28 November 1888
• Citation: 18 N.E. 600,148 Mass. 30
• Parties: PERKINS v. COUGHLAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

148 Mass. 30

18 N.E. 600

PERKINS v. COUGHLAN.

Supreme Judicial Court of Massachusetts, Bristol.

November 28, 1888

COUNSEL

F.V. Fuller, for appellant.

Louis A. Cook and Wm. J. Coughlan, for appellee, W.J. Coughlan.

OPINION

MORTON C.J.

The only question presented to us depends upon the construction of the seventh clause in the will of the testator, which is as follows: "My will is that my out-lands, not herein named, shall be sold, and the proceeds, together with my personal property, [not specified,] shall go to the payment of all my debts and legacies, and, if that should be insufficient, so much of the saw-mill pasture shall be sold as shall be necessary." The question is whether the real estate designated as "out-lands" is to be regarded as constructively converted into personal property at the time of his death, so that the will operated upon it as personalty. This question is considered in Hammond v Putnam, 110 Mass. 232, and it is there said that the general rule is that, where it appears from the will that the intention of the testator is clear to convert real into personal estate, the law will regard it as converted at the time of his death, and will treat the estate as personal for all purposes to which the intention of the testator clearly extends. We must therefore ascertain from the will what was the intention of the testator. The will is clear and explicit as to the provision that the out-lands shall be sold. The direction is not upon the condition that the proceeds of the out-lands are needed to pay debts and legacies. The sentence immediately following does direct that the saw-mill pasture may be sold if the personal property and the proceeds of the out-lands are insufficient to pay all debts and legacies, but the direction to sell the out-lands, is absolute and imperative. The testator thus shows a different intention in regard to the two pieces of property. He further says, in regard to the out-lands: "And the proceeds, together with my personal property, [not specified,] shall go to the payment of all my debts and legacies." He puts the proceeds of the out-lands upon the same footing as his personal property. We think it was his intention that they should form a common fund as personalty. He impressed upon the out-lands the character of personalty, and the law will deal with the property as having this character at the time of his death. It follows that the decree of the...