Walling v. Scott
| Decision Date | 17 November 1911 |
| Docket Number | 7,310 |
| Parties | WALLING ET AL. v. SCOTT |
| Court | Indiana Appellate Court |
Rehearing denied February 16, 1912, Reported at: 50 Ind.App 23 at 28. Transfer denied March 28, 1912.
From Morgan Circuit Court; Joseph W. Williams, Judge.
Suit by Lafayette Scott against Mary E. Walling and John E. Walling her husband, Dora A. Gentry, Lydia J. Tudor and Everett Tudor, her husband. From a decree for plaintiff, defendants appeal.
Reversed.
George W. Grubbs, D. E. Watson and James W. Harper, for appellants.
C. G. Renner, J. C. McNutt and A. M. Bain, for appellees.
John B. Johnson, who died in 1880, by one clause of his will left to his wife all of his property, both real and personal, that should be left after all his legal debts were paid, to have, hold and use during her life. A later clause was as follows: "My said wife, Malissa Johnson, shall pay all my legal debts out of such of my property as in her judgment will be most advisable, and at her death all remaining in her possession shall be sold and the proceeds equally divided between my bodily heirs, viz., Mary E. and Dora A., Lizzie I. and Lydia J. Johnson." He appointed his wife executrix of his will. Appellee married Lizzie I. Johnson in 1894, and she died in 1895, leaving no descendant. The widow of John B. Johnson died on April 21, 1908, and on May 4, 1908, appellee, as heir of his deceased wife, commenced this action in partition against the three living daughters, to have the land divided, basing his alleged right to a partition wholly on the clause just quoted from the will, and claiming that under this clause he and appellants were tenants in common in fee simple of the land. The trial court sustained him, and awarded the partition.
The question presented for our consideration is, Was appellee entitled to a partition of the land in suit?
Where a will directs land to be sold and converted into money, courts of equity deal with the land as personalty. To bring about this equitable conversion there must, however, be an adequate expression of an absolute intention that the land shall be sold and turned into money. And where there is such a blending of the real and personal estate by the testator in his will as clearly to show that he intended to create a fund out of both real and personal estate, and bequeath the fund as money, such has been held to show an absolute intention as much as an absolute direction. 9 Cyc. 830, 831, 833; 7 Am. and Eng. Ency. Law 464, 465; Craig v. Leslie (1816), 3 Wheat. 563, 4 L.Ed. 460; Rumsey v. Durham (1854), 5 Ind. 71; Nelson v. Nelson (1905), 36 Ind.App. 331, 75 N.E. 679; Comer v. Light (1911), 175 Ind. 367, 93 N.E. 660.
John B. Johnson directed positively in his will that all his property remaining in the possession of his wife at her death should be sold, and the proceeds distributed among his heirs, naming them. This included his real and personal property. He failed to designate some one by whom the sale should be made, but this did not defeat the creation of a valid power of sale. If a testator directs that his real estate be sold, without declaring by whom the sale shall be made, the power to sell rests in the executor, or administrator with the will annexed, if the duties imposed with reference thereto are such as are usually performed by an executor, or administrator with will annexed. If no executor is named, the administrator with will annexed is the proper person to exercise the power of sale. Davis v. Hoover (1887), 112 Ind. 423, 14 N.E. 468; note to Rankin v. Rankin (1865), 87 Am. Dec. 205, 210, and authorities cited; note to Crouse v. Peterson (1900), 80 Am. St. 89, 105.
Since the sale provided for by the will of John B. Johnson could not take place until the death of the executrix named therein, the administrator with will annexed may properly make such sale. We conclude, therefore, that the direction in his will is sufficient to work an equitable conversion of his real estate into money.
Appellants concede that the interests of the beneficiaries vested at the testator's death. At this time the equitable conversion took place, although the time of sale and actual conversion was fixed by the will at a more or less remote and indefinite time, namely, at the death of the life tenant. 9 Cyc. 838.
Their interests vesting at the time of the testator's death attached as personalty, for one claiming property under a will must take it in the character impressed upon it by that instrument. The beneficiaries here are not entitled under the will to the land itself, but to the proceeds of the land, and their...
To continue reading
Request your trial