Loughborough's Ex'or v. Loughborough's Dev. , 53 Ky. 549 ( 1854 )

Judge Simpson

delivered the opinion of the court.

The rights of the widow are not affected by the will; she is entitled to the same distributive share of the testator’s personal estate, and the same interest in his real estate, that she would have been had he died intestate. The will having been made before the marriage did not contain any provision for her; no renunciation therefore, was necessary oh her part, because there was nothing for her to renounce. Her rights are the same they would have been had her husband died intestate. Cummings' ex'or. v. Daniel and wife, 9 Dana, 361.

But as she is entitled to one-half the personal estate absolutely, and only an estate for life in one-third of the real property, the nature and character of the estate which belonged to the testator at the time of his death is a question that has an important bearing on her rights.

On the'part of the widow, it is contended that as the deed of trust executed by her husband and herself, directed the real property therein conveyed to be sold and turned into money, that it was an equitable eon-version of it, and it must at the time 'of the testator’s death, for the purposes of distribution, be considered and treated as personal estate. On the side of the devisee it is insisted, that as all the debts have been paid, and thereby the purposes of the trust have been accomplished; the property remaining unsold retains its original character, and that in such a case the doctrine of equitable conversion has no application.

2. The equitable doctrine that money, which is directed by will to be converted into land, is to be treated as land, and land directed to be converted into money and so treated in the distribution, tho’ most usually applied to devisees, is equally applicable to cases of deeds. 1 Bro. Chy. Ca. 497; 10 Vez. 129; 2 Pr. Wms. 320; 3 Wheaton, 564. 3. The character of the fund in case of a deed is fixed from its date, in case of a will, from the death of the testator, and it is treated as converted from those periods. 5 Sim., • 424; 7 Hare., 299; 27tk vol. Eng. Chy. Rep.

The equitable doctrine that money which is directed to be invested in land, and land which is directed to be sold and converted into money, are to be considered as that kind of property into which they are directed to be changed, has most usually been applied to the case of a devise by will,'but still it is equally applicable to the case of a disposition of property made by deed. Fletcher v. Ashburner, 1 Bro. Ch. Gases, 497 ;■ Thornton v. Hawley, 10 Yezey, 129; Dougherty v. Bull, 2 P. Williams, 320; Graig v. Leslie, 3 Wheaton, 563.

The application of this equitable doctrine however, differs in the case of a deed from that of a will, in this particular: the will speaks from the death, the deed from the delivery. If then the maker of the deed impress upon his real estate the character of personalty, that, for the purposes of distribution after his death, makes it personal and not real estate from the delivery of the deed. The property is converted in the lifetime of the author of the deed, whereas, in the' case of a will, the conversion does not take place until the death of the testator.

If then the conversion take place from the delivery of the deed, the status in which the property is found at the death of the grantor, cannot affect the question to whom it belongs. In the case of Thornton v. Hawley, supra, Sir W. Grant said, “There is no weight in the circumstance that the property is found in the shape of money or land, for the character is to be found in the deed.” Whenever the language of the deed expresses the intention of its author, that real estate shall be sold and converted into money, the estate thus conveyed and impressed with the character of personalty will, as to the claimants after the death of the maker of the deed, retain that character, and be regarded as personal estate. Biggs v. Andrews, 5 Sim. 424; Griffith v. Rickets, 7 Hare, 299; 27 vol. of English Chancery Reports.

4. By deed property was conveyed to a trustee, to be sold upon such terms and in such manner as to realize the best price, and the proceeds to pay the debts of the grantor in a prescribed order, “and the surplus of the funds produced by the property hereby conveyed shall beheld in trust” fbr the grantor. Held, that from the date of the deed there was a conversion of the realty into personalty, and that the distribution of it should be. so regarded, and the widow of the grantor, behaving died childless, was entitled to one-half.

There is no difficulty as to the true construction of the deed in this case. It directs the trustee to sell the property conveyed in such manner and upon such terms as will realize the largest prices, and make conveyances to the purchasers. With the proceeds of the sales, and the notes transferred by the deed, he is required to pay the debts in the order prescribed, “and the surplus of the funds produced by the property hereby conveyed shall be held by said Speed in trust for said Loughborough.” The deed does not merely direct the sale and conversion of so much of the real estate as may be necessary for the payment of the debts, and provide that the residue thereof shall be held in trust for the grantor. It directs the whole of it to be sold, and the surplus funds arising from the sale, and not the surplus of the property itself, to be held in trust for the author of the deed.

It is not material then whether a sale of all the trust property was required for the payment of the debts or not, or whether the author of the deed directed a sale ,of it under the belief that it would all be necessary for that purpose. The deed itself affixes to the property its character, and that without reference to its actual condition at the time of the grant- or’s death, or to the necessity for a sale of the whole of it for the payment of the debts specified in the deed. This proposition is fully sustained by the cases already referred to, of Biggs v. Andrews, and Griffith v. Ricketts.

There is no reason why a court of equity should not be governed by the legal effect of the deed, in deciding in this case, between the claims of the widow and the devisee. The latter has no superior equity to that of the former, and even if they should be regarded as standing upon an equality, the equitable doctrine of conversion operates in favor of the claim of the widow, and must be permitted to have its full effect.

The trust was not fully executed in the lifetime of the author of the deed, nor did any thing take place during that period to alter the legal effect of the deed. It follows, from these views, that the real estate contained in the deed of trust, which has not been sold, and remains as a surplus, must be distributed between the claimants as if it were personal property, and that the wido w is entitled to a moiety thereof, her husband having died childless. The chancellor distributed the estate between the parties upon this principle.

Wherefore, the judgment is affirmed.