Neumann's Estate , 41 Pa. Super. 279 ( 1909 )

Opinion by

Henderson, J.,

It has frequently been said that a conversion under a will only takes place when (first) there is a positive direction to sell, or (second) an absolute necessity to sell for the purpose of carrying out the provisions of a will, or (third) such a blending of real and personal estate by the will as clearly discloses an intention on the part of the testator to create a fund out of both real and personal property which he bequeaths as money: Hunt’s App., 105 Pa. 128; Irwin et al. v. Patchen, 164 Pa. 51; Cooper’s Est., 206 Pa. 628; Scott’s Est., 37 Pa. Superior Ct. 198. There is no positive direction to sell in the will under consideration. A power only is given to the executors to be exercised at their discretion. Nor can it be successfully contended that an absolute necessity to sell is apparent from the terms of the will. If the testator’s daughter had left issue over the age of twenty-one years the provisions of the will would have been fully executed without any necessity for the sale of the real estate, and certainly the occurrence of this contingency could not have been in the testator’s mind as a fact inducing him to contemplate a conversion in any event. If the will provided a scheme of distribution which necessarily involved the sale of the real estate, there would be force in the appellant’s argument. Vanuxem’s Est., 212 Pa. 315, would be an authority in support of it. But it is only because a conversion of real estate into money without any conditions or contingencies was necessary to carry out the provisions of the will that the conclusion was reached in that case. The court held that the testator must have foreseen the necessity for the sale of his real estate to carry out his scheme in dividing his estate by bestowing the pecuniary legacies. But here the legacies might never become payable, in which case there need be no sale.

Lands subject to a power of sale pass to the devisee until the power is exercised, pending which exercise the devisee is entitled to the rents.

The conclusion of the orphans’ court is in harmony with the adjudicated cases and the decree is affirmed.