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§ 808. Conversion Depends on Intention of Testator: How Ex

pressed.

Equitable conversion, as applied to wills, depends upon the express intention of the testator that the sale shall be made rather than upon the time of its consummation. The intention of the testator need not be stated in direct terms; it is sufficient if it can be drawn from all the provisions of the will considered together.50 If the intention be not stated in direct terms, in order that there may be a conversion a sale must be necessary in order to carry

485, 2 L. R. A. (N. S.) 623, 75 N. E. 1029; Stake v. Mobley, 102 Md. 408, 62 Atl. 963; Thissell v. Schillinger, 186 Mass. 180, 71 N. E. 300; Canfield v. Canfield, 62 N. J. Eq. 578, 50 Atl. 471; Power v. Cassidy, 79 N. Y. 602, 35 Am. Rep. 550; Bowditch v. Ayrault, 138 N. Y. 222, 33 N. E. 1067; Blolasky v. Gally, 1 Sm. P. F. (N. C.) 509; McClure's Appeal, 22 Sm. P. F. (N. C.) 509; Brothers v. Cartwright, 55 N. C. 113, 64 Am. Dec. 563; Lee v. Baird, 132 N. C. 755, 44 S. E. 605; Collier v. Grimesey, 36 Ohio St. 17; Hutchings v. Davis, 68 Ohio St. 160, 67 N. E. 251; Allison v. Kurtz, 2 Watts (Pa.) 185; In re Peterson's Appeal, 88 Pa. St. 397; Jones v. Caldwell, 97 Pa. St. 42; Taylor v. Haskell, 178 Pa. St. 106, 35 Atl. 732; In re Severns' Estate, 211 Pa. St. 65, 60 Atl. 492; Wilkins v. Taylor, 8 Rich. Eq. (S. C.) 291; Walker v. Killian, 62 S. C. 482, 40 S. E. 887; Wayne v. Fouts, 108 Tenn. 145, 65 S. W. 471; Bennett v. Gallaher, 115 Tenn. 568, 92 S. W. 66; Effinger v. Hall, 81 Va. 94;

Ford v. Ford, 70 Wis. 19, 5 Am. St. Rep. 117, 33 N. W. 188; Becker v. Chester, 115 Wis. 90, 91 N. W. 87, 650.

A power conferred upon an executor to sell lands does not pass to an administrator with the will annexed. Hodgin v. Toler, 70 Iowa 21, 59 Am. Rep. 435, 30 N. W. 1.

As to ademption of such legacies, see § 748.

As to a testamentary gift of interests in lands founded on contracts of sale and purchase, see §§ 244, 746.

As to how interests of mort gagor and mortgagee in lands are considered, see §§ 256, 747.

50 In re Pforr's Estate, 144 Cal. 121, 77 Pac. 825; Greenwood v. Greenwood, 178 Ill. 387, 53 N. E. 101; Green v. Johnson, 4 Bush (67 Ky.) 164; Stake v. Mobley, 102 Md. 408, 62 Atl. 963; Clift v. Moses, 116 N. Y. 144, 22 N. E. 393; In re Severns' Estate, 211 Pa. St. 65, 60 Atl. 492; Becker v. Chester, 115 Wis. 90, 91 N. W. 87, 650.

out the provisions of the will,51 or real and personal property must have been so blended by provisions of the will as to show an intent on the part of the testator that they be considered a fund from which legacies are to be paid.5

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A direction that executors shall at their discretion either sell lands in a certain place, and invest the proceeds in more rentable property or use the proceeds in improving the land unsold, does not effect a constructive conversion, the authority to the executors being discretionary merely. And a direction to sell a homestead accompanied by a direction not to do so until the widow to whom it has been left in lieu of dower shall cease to desire it as her home, nor unless it will sell for ten thousand dollars, is not sufficiently positive to effect a constructive conversion.58 Yet, the fact that a conversion

The use of the word "desire" instead of "direct" in authorizing a sale is held equivalent to "I will" that it be sold, and is imperative. In re Pforr's Estate, 144 Cal. 121, 77 Pac. 825, citing Appeal of City of Philadelphia, 112 Pa. St. 470, 4 Atl. 4.

"Equitable conversion is effected by a power to sell and a duty to sell. It is not enough to manifest an intent that land shall pass as money, unless there is also, either in terms or by implication, a grant of the means of turning it into money." - Appeal of Clark, 70 Conn. 195, 39 Atl. 155, citing Hale v. Hale, 125 Ill. 399, 17 N. E. 470; Hobson v. Hale, 95 N. Y. 588.

51 Duffield v. Pike, 71 Conn. 521, II Com, on Wills-20

42 Atl. 641; Stake v. Mobley, 102 Md. 408, 62 Atl. 963; Thissell v. Schillinger, 186 Mass. 180, 71 N. E. 300; Roy v. Monroe, 47 N. J. Eq. 356, 20 Atl. 481; Asche v. Asche, 113 N. Y. 232, 21 N. E. 70; In re Hunt's Appeal, 105 Pa. St. 128, 141; Becker v. Chester, 115 Wis. 90, 91 N. W. 87, 650.

52 In re Hunt's Appeal, 105 Pa. St. 128, 141; In re Sauerbier's Estate, 202 Pa. St. 187, 189, 51 Atl. 751.

53 Ford y. Ford, 70 Wis. 19, 5 Am. St. Rep. 117, 33 N. W. 188. See, also, Taylor v. Haskell, 178 Pa. St. 106, 35 Atl. 732; In re Sauerbier's Estate, 202 Pa. St. 187, 51 Atl. 751.

was directed to be made "as soon as practicable" does not impair its imperative nature.54

General words giving the executors power to settle the estate as they judge best do not confer a power to sell real estate, nor operate as an equitable conversion.""

§ 809. Time When Conversion Is Considered to Take Place.

Where the power and duty of sale by the executor are expressed or implied in the will of the testator, it then becomes a question as to when conversion takes effect. When the sale is not dependent upon a contingency or the time of sale is not discretionary with the executor, the conversion is regarded as complete as from the time of the testator's death.56 It is so considered even though the will direct that the sale be postponed." If the sale is to be made upon the happening of some contingency certain to occur, such as the termination of a life

54 Ford v. Ford, 70 Wis. 19, 5 Am. St. Rep. 117, 33 N. W. 188. See, also, Bates v. Spooner, 75 Conn. 501, 54 Atl. 305; Starr v. Willoughby, 218 Ill. 485, 2 L. R. A. (N. S.) 623, 75 N. E. 1029.

There are cases holding that if it appears from the will that the testator intended that his executors should sell, although they are not absolutely directed so to do, the property will be deemed in equity to be converted. See Wheldale v. Partridge, 5 Ves. Jun. 388; Blount v. Moore, 54 Ala. 360; Whitehead v. Wilson, 29 N. J. Eq. 396; Dodge v. Pond, 23 N. Y. 69; Gray v. Henderson, 71 Pa. St. 368; Dodge v. Williams, 46 Wis. 70, 1 N. W. 92, 50 N. W. 1103; Gould

v. Taylor Orphan Asylum, 46 Wis. 106, 50 N. W. 422.

Other cases deny the correctness of the rule stated in the preceding note, and require that the direction be positive and explicit. See Edwards' Appeal, 47 Ind. 138, 144; Seeger's Exrs. v. Seeger, 21 N. J. Eq. 90; Chew v. Nicklin, 45 Pa. St. 84; Bennett v. Gallaher, 115 Tenn. 568, 92 S. W. 66.

55 Skinner v. Wood, 76 N. C. 109. 56 Reiff v. Strite, 54 Md. 298; Wurts' Exrs. v. Page, 19 N. J. Eq. 365; In re McWilliams' Appeal, 117 Pa. St. 111, 11 Atl. 383.

57 High v. Worley, 33 Ala. 196; Hocker v. Gentry, 3 Metc. (Ky.) 463; Stagg v. Jackson, 1 N. Y. 206; In re Severns' Estate, 211 Pa. St. 65, 60 Atl. 492.

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estate, the authorities are not in harmony. Some hold that the conversion is effective as of the date of the testator's death,58 while others hold that the conversion does not take place until the termination of a life estate. But if the direction to sell is positive, merely the time and mode of sale being discretionary with the executor, an immediate conversion is not prevented. Where the executor is given the power of sale and is vested with dis

58 Handley v. Palmer, 103 Fed. 39, 43 C. C. A. 100; In re Stevenson's Estate, 2 Del. Ch. 197; Rankin v. Rankin, 36 Ill. 293, 87 Am. Dec. 205; Lash v. Lash, 209 Ill. 595, 597, 70 N. E. 1049.

59 Bank of Ukiah v. Rice, 143 Cal. 265, 101 Am. St. Rep. 118, 76 Pac. 1020; Matter of Hammond's Estate, 74 App. Div. (N. Y.) 547, 77 N. Y. Supp. 783; Tillman v. Davis, 95 N. Y. 17, 47 Am. Rep. 1.

When a will directs the conversion of real property into money, such property and all its proceeds must be deemed personalty from the time of the testator's death. This is enacted by statute in California, Dakota, Montana and Utah. -Stimson's Am. Stat. Law, § 2805. But see Estate of Walkerly, 108 Cal. 627, 652, 49 Am. St. Rep. 97, 41 Pac. 772, which holds that the statute does not apply where the direction is for a future sale. The court says: "The rule of equitable conversion merely amounts to this: That, where there is a mandate to sell at a future time, equity, upon the principle of regarding that done which ought to be done, will, for certain purposes

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and in the aid of justice, consider the conversion as effected at the time when the sale ought to take place, whether the land be then really sold or not. But whenever the direction is for a future sale, up to the time fixed the land is governed by the law of real estate."-Estate of Walkerly, 108 Cal. 627, 652, 49 Am. St. Rep. 97, 41 Pac. 772.

60 Russell v. Hilton, 80 App. Div. 178, 80 N. Y. Supp. 563; Dodge v. Pond, 23 N. Y. 69; In re Philadelphia's Appeal, 112 Pa. St. 470, 4 Atl. 4; In re Severns' Estate, 211 Pa. St. 65, 60 Atl. 492; Carr v. Branch, 85 Va. 597, 8 S. E. 476.

Where the testator directs the trustee to sell certain real and personal property in such manner and for such price as he may deem fit, and to pay the income to a specified beneficiary, under the doctrine of equitable conversion the realty is converted into personalty as of the time of the testator's death, and the beneficiary acquires no interest in the realty. -Lambert v. Morgan, 110 Md. 1, 132 Am. St. Rep. 412, 17 Ann. Cas. 439, 72 Atl. 407.

cretionary authority to determine whether or not it shall be made, a sale made in accordance with the power and to effectuate the purpose of the testator will work a conversion as of the date of sale.61

§ 810. Effect of Failure of Purpose for Which Sale Was Directed.

Where a testator directs a sale of all or a portion of his estate and specifies the purpose for which it is to be made, either expressly or by implication, the conversion will be limited to such purpose. If the purpose fails either because of the happening of events or because of it being void in law, the conversion will fail likewise. If the purpose was to collect a fund and to pay it over to certain legatees, and such legacies lapse because of the death of the beneficiaries, the purpose likewise fails and there is no conversion. The conversion will be effective only in so far as it fulfills the purposes and intent of the testator. If no sale is necessary the property will devolve in its original form, unconverted, upon the persons who would be entitled thereto either as heirs or as residuary legatees according to whether such property is covered by the re

61 Walker v. Shore, 19 Ves. Jun. 387; In re Ibbitson, L. R. 7 Eq. 226; In re Wintle, (1896) 2 Ch. 711; Haward v. Peavey, 128 Ill. 430, 15 Am. St. Rep. 120, 21 N. E. 503; Cronise v. Hardt, 47 Md. 433; Romaine v. Hendrickson, 24 N. J. Eq. 231; Condit v. Bigalow, 64 N. J. Eq. 504, 54 Atl. 160; Reed v. Underhill, 12 Barb. (N. Y.) 113; In re Tatum, 169 N. Y. 514, 62 N. E. 580; Mills v. Harris, 104 N. C. 626, 10 S. E. 704; In re Sauerbier's Estate, 202 Pa. St. 187,

51 Atl. 751; Taylor v. Haskell, 178 Pa. St. 106, 35 Atl. 732; In re Cooper's Estate, 206 Pa. St. 628, 98 Am. St. Rep. 799, 56 Atl. 67.

"In order to work a conversion, the direction to sell must be positive and explicit. It must not rest in the discretion of the executor, nor depend upon contingencies. A direction to sell upon a future contingency does not effect an equitable conversion until an actual sale."-Jones v. Caldwell, 97 Pa. St. 42.

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