Majority
Headnote
Wills—Compelling Payment op Legacies.Neither party seems to have had a very strict regard to the provisions of section 2722 (formerly 2718) the Code, in preparing the petition and answer. Each of the petitioners, however, states his and her claim at $9,000. The answer.
The personal estate was valued at..........................$27,906 43
Debts and expenses estimated at.................... $7,500
Paid on account of petitioneis’ legacies.............. 5,000
- 12,500 00
Leaving the residue, from inventory, at.....................$15,406 43
One-half of which is....................................... 7,703 21
—Or $1,296.79 less than is claimed by each. This deficiency is sought to be supplied by taking the necessary amounts from the proceeds of the sale of the real estate, which it is claimed will be legal assets when the actual conversion shall have been effected, which has not as yet been done, and which proceeds will be-equally liable with the residue of the personal estate for the payment of debts and expenses of administration. The effect of making the decree for tire payment to each petitioner of the sum now asked would be to relieve the strictly personal estate from its liability to the extent of about $2,600, and shift it to the proceeds of the sale of the real estate. Can this be done in this case? Ordinarily, the rule is well established that an equitable conversion of realty into personalty takes effect at the death of the testator, and the proceeds are to be regarded as money from that period,, and, where no other direction for their disposition is given, may be applied to the payment of debts and expenses of administration,, the same as if they had been money in hand at the time of his. death. But, where real estate is directed to be sold only for a certain purpose, it is converted only for the purpose of the will, and! that a devise for such a purpose, i. e. the payment of certain legacies, does not throw open the fund to simple contract creditors,, where there is sufficient personal property to pay the debts. Gibbs v. Ougier, 12 Ves. 413. So, where a devisor directs his land to be sold, and the produce divided between A. and B., the obvious purpose of the testator, is that there shall be a sale for the convenience-of division, and A. and B. take their several interests in money, and not land. Bogert v. Hertell, 4 Hill, 492 , citing Smith v. Claxton,. 4 Madd. 484. To hold otherwise would be to ignore and subvert the expressed intention of the testatrix. This is the sole question discussed in the brief submitted. These principles of the law on the subject are not here stated for the purpose of a decision of the question, but in order to show that there is some matter I cannot now try, as weE as to show that it is not proved to my satisfaction that there is money or other personal property of the estate,, applicable to the payment or satisfaction of the petitioners’ claims, which may be so applied without injuriously affecting the rights, of others entitled to priority or equality of payment or satisfaction. See In re Hedding M.