Cronise v. Hardt

Alvey, J., delivered the opinion of the Court. By the will of Horatio Waters, he authorized and empowered his executrix to sell at public or private sale, as she might deem best, and without the previous order of the Orphans’ Court, all or so much and such parts of his ⁴³⁵ real and personal estate as might be necessary for the payment of his debts and funeral expenses; and after the payment of debts and funeral expenses, he gave, devised and bequeathed all the rest and residue of his estate, real, personal and mixed, to his wife, Margaret Waters, for life, and after her death to be divided between his two sons, Cyrus Waters and Horatio Waters, share and share alike; and in case of the death of either of them, the portion to which he would be entitled, if living, the testator directed to be divided amongst the children of the deceased son. The testator appointed his wife, Margaret, sole executrix ; and the personal estate proving insufficient, by a small amount, to pay all the debts and funeral charges, the executrix, with the sanction of the Orphans’ Court, sold an unimproved lot, part of the real estate devised, for $1450. The testator died in 1866, and this sale was made on the 26th of November, 1868, and it was ratified by the Orphans’ Court on the 7th day of June, 1869.

Cyrus Waters, one of his sons and devisees named in the will, died after the date of the will, in the life-time of the testator, leaving three ehildren, whose names appear in the proceedings. After the payment of the debts, the balance of the proceeds of the real estate sold, amounting to $1454, inclusive of interest received, was distributed to the widow for life, and the larger portion of which was invested in State bonds. Mrs. Waters, the devisee for life, died in 1875, and John C. Hardt, her executor, has received into his hands bonds amounting to about $700 of the specific fund ; the balance having been disposed of by Mrs. Waters in her life-time. After the sale of the real estate by the executrix, the appellant recovered two judgments in the Circuit Court for Frederick County against Horatio Waters, one of the devisees under his father’s will; — the first at the May Term, 1869, for $650, and the other at the February Term, 1871, for $350.

And the appellant filed the pre ⁴³⁶ sent bill against John O. Hardt, executor of Mrs. Waters;' and Horatio Waters, the devisee, and defendant in the judgments, claiming and insisting that the fund, the product of the real estate sold, should be taken and considered as real estate unconverted, and that his judgments constitute liens thereon; wherefore he seeks an appropriation of one-half of the product of the real estate distributed to Mrs. Waters, in payment of his judgments. Horatio Waters, in his answer, insists that the real estate was properly sold by his mother under the power conferred upon her by his father’s will, and that there was a complete conversion of the estate from realty into personalty; and he denies that the judgments created liens on the proceeds of the sale, either in the hands of his mother or of her executor. The executor Hardt, without admitting or denying the right asserted by the appellant, submits the matter to the judgment of the Court. 1. It is, in the first place, contended by the appellant, that the executrix exceeded her authority in making the sale; that she was only empowered to sell so much of the real estate as might be required for the payment of debts- and funeral expenses, and that the personal estate was deficient for these purposes only about $15, and that this small deficiency did not justify the sale of real estate to the value of $1450.

Upon the principle that where a sale is rendered unnecessary by reason of a total failure of the purposes for which the conversion was directed or authorized, or where a sale is unnecessarily made by an executor or trustee, the rights of the parties entitled to the real estate as such remain unvaried, it is contended that the devisee' Horatio Waters retains his right in the proceeds of the sale made by his mother as real estate; (Chitty vs. Parker, 2 Ves. Jr., 271; Smith vs. Claxton, 4 Madd., 484*; Davenport vs. Coltman, 12 Sim., 610;) and therefore the judgments created a lien as if no sale had been made. It is certainly true, that the conversion of real into personal property, or personal into real, Under a power in a ⁴³⁷ will, takes place only for the purposes for luhich it is authorized; and so far as those purposes do not extend, or, in so far as any of them do not take effect in fact or in law, the property is