Pyle's Appeal , 102 Pa. 317 ( 1883 )

Mr. Justice Gordon

delivered the opinion of the court, February 26th 1883.

Where a testator, by his last will and testament, directed as follows: “ It is my will that after the death of my beloved wife, Mary, all my estate be appraised and sold as soon as it can be done with advantage; and if any of my sons think proper to take the farm on which I now live, at the appraisement, he shall have the privilege of doing so on paying the other heirs their respective shares; and it is my will that all the money arising from the sale of my real estate be equally divided among my children, share and share alike,” it was held that this was a conversion of the realty into personalty, which took effect at ■the death .of 'the testator, and that the provision that any of his sons might, at his option, take the farm at the appraisement, did not change the effect of the direction to sell, since, as was said by Mr. Justice Mercur, who delivered the opinion of the court, “ whether or not a son acquired it, it was nevertheless a sale, and the one taking it became a purchaser.” Laird’s Appeal, 4 Nor. 339.

• The provisions above stated, are in effect, identical with those found in the will of Beece Pyle. He directs that after the death, or marriage, of his ■ wife, Mary, his executors shall sell and dispose of all liis real and personal estate, giving to his sons, Friend Pyle and Atwood Pyle, or either of them, the Option of taking the realty at the appraisement, for which he particularly provides; in other words, they are to be preferred as purchasers. That this provision worked a conversion of the real estate into personalty, is, as we have above .shown, decided, hence, we need pursue this branch of . the case no further.

Were it not for the devise over, in ease any of the devisees died before reaching the age of twenty-one years and without lawful issue, the legacies must be taken as vested, and that payment of them was deferred to the time mentioned, and until the marriage, or death, of the widow, would make no difference: McClure’s Appeal, 22 P. F. S. 414. These legacies, therefore, depended solely upon the contingencies mentioned and none other, that is, the dying of the donee or donees, beforé twenty-one and without issue. As, however, Mrs. Anna M. Smith lived beyond the period indicated, the bequest to her, at the time of her death, had become absolute, and so was properly awarded to her administrator, James M. Smith: Scott v. Price, 2 S. & R. 59.

The appeal is dismissed at the costs of the appellant, and the decree of the Orphans’ Court is affirmed.