McGowan v. Tifft , 72 N.Y.S. 132 ( 1901 )

Hiscock, J.

This is an action for partition. The question whether plaintiff has any legal title to and interest in the premises of which partition is sought depends upon the construction of the will of one James Auyer, her father. It is claimed by her that, under such will, she did take an interest in the farm in question. Upon the other hand, it is claimed by the defendants that the will in question provided for and, in effect, directed the sale, of the real estate and a conversion of it into money, with subsequent division of the proceeds amongst the plaintiff and others, so that there has been an equitable conversion of real estate, with the title thereto, at present vested in the trustee, and that no title thereto, or any part thereof, vested in the plaintiff. I am inclined to think that the latter contention is the correct one. The language of the will in question does not specifically and absolutely, in so many words, direct the sale of this real estate. It does, however, authorize and empower the sale thereof, and the entire scheme of the will, so far as it relates to the subject of the present controversy, contemplates and is based upon such sale.

The question -of equitable conversion is largely one of intent, and such intent may be found, although the power of sale is not in terms imperative. I think the doctrine that an equitable conversion has been provided for in this case comes well within the principles of Power v. Cassidy, 79 N. Y. 602; Salisbury v. Slade, 160 id. 278; Morse v. Morse, 85 id. 53; Lent v. Howard, 89 id. 169; Gourley v. Campbell, 66 id. 169.

In addition to the terms of the will themselves, there was some evidence in regard to the situation of the estate covered thereby which sustains the conclusion that the testator intended to have a sale of the real estate involved here and a conversion thereof into personal property.

Ordered accordingly.