Martin v. Sherman , 2 Sand. Ch. 341 ( 1845 )

The Assistant Vice-Chancellor.

The complainants insist that the sale to them by the executors of John Taylor, was. regular and valid.

This presents an important question, upon which I prefer not to express any opinion, inasmuch as there is another point upon which I have no difficulty, and which is decisive of the case.

After sundry devises and bequests, the testator disposed of the bulk of his estate in these words.

“ 12th. I do hereby direct and empower my executors, all or whoever of them shall qualify and undertake the trust hereby reposed in them, after having paid and secured the bequeathments herein made, to sell and dispose of the remainder of my estate, both real and personal, to the best advantage in their power, and as sound discretion directs, and then divide the whole proceeds equally, share and share alike, among my four sons and three daughters, to wit James S., Andrew, Robert L., and Scott, Margaret, Elizabeth and Janet, or their heirs, and should any of them die and leave no lawful heirs, such share or shares to be considered part of the residuary estate and divided as such.”

Under this clause, although there was a discretion as to the time of sale, the direction to sell the real estate was absolute and imperative. It was only after such sale, that it could be divided, or indeed that it was to be received, by the four sons and three daughters.

The gift to them was not of land, but of the proceeds of land to be sold, and of personal estate.

Thus the quality of personalty was given to the produce of this real estate to all intents ; and not merely for any particular purpose of the will.

There was therefore, an equitable conversion of this real estate, and it is to be considered in this court, as having been personal property for all the purposes of the will. (Cruse v. Barley, 3 P. Will. 20, and Mr. Cox’s note, ibid. 22; Ackroyd v. Smithson, 1 Bro. C. C. 503, 505; Walker v. Shore, 19 Ves. 387 ; Van Vechten v. Van Veghten, 8 Paige’s R. 105; Leigh & Dalz. on Eq. Conv. 50, &c.)

The bequest of one-seventh of this property, was directly to the mother of the infant defendants. It was a bequest of personalty, not limited to her separate use, and her husband was entitled to it by virtue of the marriage. Mrs. Janet Sherman had an equity in the fund for a settlement, which this court would have protected; but the executors, in the absence of any such interposition, had a right to pay the whole amount to her husband. This equity was personal to her. After her death, or after her implied assent to the payment to her husband; her children could not claim under that equity, or set up any equity of their own.

It is evident therefore, that the children of Mrs. Sherman, had no estate or interest in the property in question, or in its proceeds, upon her death.

It was proved that Charles Sherman, the husband, ratified the sale made by the executors, the next year after it took place, and received a share of the proceeds. He was thereby estopped from questioning its regularity, or its propriety; and those who have succeeded to him are concluded by his acts.

The complainants are entitled to a decree, declaring their rights accordingly, and directing the infant defendants by their guardian ad litem, to execute to them a proper release and confirmation. The form of the deed may be settled by a master.

The complainants must pay the costs of the guardian ad litem.