Darlington v. Darlington , 160 Pa. 65 ( 1894 )

Opinion by

Mr. Chief Justice Stebbett,

To maintain the issue on her part, the plaintiff gave in evidence, inter alia, deed of March 28,1805, from Benjamin Hawley and wife, to Joseph Darlington, for the land in controversy, being part of a larger tract patented to said grantor; also will (of Joseph Darlington, probated May 12, 1821, devising same to his wife for life, remainder in fee to his children, of whom his two sons Job G. and. Caleb were the survivors; also, deed of February 5,1867, from Job G. Darlington and wife to his brother Caleb, for his undivided interest in same; also, will of Caleb Darlington, probated December 11, 1890, by the residuary clause of which he devised same land as follows: “ All the rest, residue and remainder of my estate, real, personal and mixed, I give, devise and bequeath to my brother Job G. Darlington, and to his heirs forever; ” also, will of Job G. Darling-ton, dated December 13,1890, and probated February 13,1891, wherein he directed, 1st, that all his just debts and funeral expenses should be paid by his executors; and, 2d, “ in order to enable them to pay the same, I do authorize and empower them to sell all my real and personal estate,” etc. He then gave four small legacies, aggregating $360, and disposed of the residue of his estate ás follows: “Then all the residue and remainder of my estate I do give and bequeath to my wife Lydia Ann Darlington, to her, her heirs and assigns.”

Independently of the land in controversy the estate of Caleb Darlington, who died December 1, 1890, was sufficient to pay all his debts and legacies and, in addition thereto, 1836.12 to the estate of Job G. Darlington, his residuary legatee. The land in dispute was not sold by the executor; and, so far as appeared at the trial in November, 1892, there were no debts or funeral expenses unpaid, or anything else, requiring the exercise of the power of sale contained in the will.

The learned president of the common pleas was of opinion that the record evidence, consisting of the said deeds, wills, etc., introduced by the plaintiff, made out a prima facie legal title in her to the land in controversy, and he accordingly instructed the jury that her title was sufficiently established, and their verdict should therefore be in her favor. This instruction is the subject of complaint in the first and second specifications of error.

In the absence of any countervailing evidence, on the part of the defendant, tending to show title in him, we think there was no error in the instructions complained of. The evidence showed that her husband, seized of the land in controversy, devised the same to her in fee. There was no conversion of the land into personalty by anything contained in his will. It contains no direction to his executors to sell the land in question. It gives them merely power to sell, “ in order to enable them to pay ” his debts and funeral expenses. To work a conversion of real estate into personalty, there must be either (a) a positive direction to sell; or (5) an absolute necessity to sell in order to execute the will; or (o') such a blending of realty and personalty, by the testator, in his will, as to clearly show that he intended to create a fund out of both real and personal estate, and to bequeath the same as money. In the first,, the intention to convert is expressed. In the latter two it is implied. Where the result is to change the course of inheritance, the law does not favor conversion, and it will be presumed only so far as is necessary to effectuate the intention of the testator : Hunt’s Appeal, 105 Pa. 141; Swift’s Appeal, 87 Pa. 508; Perot’s Appeal, 102 Pa. 256 ; Wilkinson v. Buist, 124 Pa. 253; Fidler v. Lash, 125 Pa. 87.

A bare power of sale, such as that given in the will under consideration, like a discretionary power, does not work a conversion until exercised: Sheridan v. Sheridan, 136 Pa. 14; Peterson’s Ap., 88 Pa. 397.

In this case, there was no sale under the power given in the will; nor does it appear that there was or is any necessity to exercise the power. It therefore follows that the land in controversy passed, as realty, to the plaintiff, devisee thereof under her husband’s will.

Defendants points for charge recited in the third and fourth specifications were rightly refused. In the former, binding instruction to find for defendant is requested; in the latter, the court is asked to say that the verdict must be for defendant, because there is no evidence of plaintiff’s acceptance of the real estate, or of her election to take the same. For obvious reasons, neither of these points could have been affirmed. We have already seen that plaintiff’s claim of title, etc., was sustained by the evidence; and, as devisee under her husband’s will, her title was complete without proof of either acceptance or election to take. The presumption is that every devisee has accepted the bounty of his or her devisor; but, if evidence of acceptance were necessary, plaintiff’s assertion of title by bringing this suit is sufficient.

The subjects of complaint in the remaining six specifications are the rejection of the several offers of evidence recited therein respectively. The obvious answer to each of these offers is that the statute of frauds is a bar to the admission of such evidence for the purpose of showing title out of the plaintiff. The written agreement of the executor recited in the tenth specification could not affect her right, and was therefore not admissible against her in this action. Nor is there anything in the case on which estoppel can be grounded. Plaintiff acquired nothing under the agreement referred to, nor did defendant lose anything thereby to which he was entitled. His allegation of the insolvency of Caleb Darlington’s estate, recited in said agreement, etc., proved to be unfounded, as appears by the decree in Darlington’s Estate, 147 Pa. 624, to which we have been referred.

The case was carefully and accurately tried, and there appears to be nothing in the ruling of the court below of which the defendant has any just reason to complain.

Judgment affirmed.