Keller v. Harper

Yellott, J., delivered the opinion of the Court. In the Circuit Court for Frederick County, sitting in equity, a bill of complaint was filed by Charles Y. S. Levy, ⁸¹ administrator de bonis non cum testamento annexo, of Jacob Keller, deceased, for the purpose of obtaining a judicial •construction of the will of said decedent, who departed this life in the year eighteen hundred and fifty, after having made a testamentary disposition of his property by will and codicil, which were duly admitted to probate by the Orphans’ Court of said county. During his life the testator had contracted two marriages. He had two children by the first marriage and six by the second.

The children of the first marriage were both daughters, one of whom, Ann E., married James Harkey, and the other, Eichard Harper. The testator’s second wile survived him. His daughter, Mrs. Harkey, died intestate and without issue in the year 1852 or 1853, and her husband died a few years afterwards, and prior to the decease of the widow of the testator. Mrs. Harper died, leaving two ■children, Eichard K. Harper and Charlotte Snook, who are her heirs-at-law.

The husband of Mrs. Harper is now deceased. As Mrs. Harkey died intestate and without issue, her sister of the whole blood would inherit any real estate belonging to her which she had acquired by purchase and would transmit it by descent, to her heirs-at-law, by dying intestate. The proceeds from the sale of the real estate of Jacob Keller, whether sold during the life-time of his widow, or since her death, have been distributed in the Orphans’ Court of Frederick County, and paid out, except that portion assigned by such distribution to the heirs of Mrs. Harkey. The question now to be determined is, who are the heirs of Mrs. Harkey ?

If by the operation of the terms of the testator’s will, his real estate, although not sold until many years after his death, underwent a transmutation and was converted into personalty, there could be no distinction between the whole and the half blood, who would be entitled to share equally in the distribution. If, on the other hand, the real estate was not, in conformity with the ⁸² principles of equitable conversion, transformed into personalty anterior to an actual sale, then the heirs-at-law of Mrs. Harper, the sister of the whole blood, would be entitled to the distributive share of Mrs. Hartey, who had died intestate and without issue. Art. 93, sec. 131 of the Code. The appellees, as the descendants of a sister of the whole blood, claim to the exclusion of the children or descendants of the children of the testator’s second wife, on the ground that the will did not so operate as to cause a transmutation or conversion of the realty into personalty prior to the period when the property was sold.

By a fundamental principle in equity, long established and universally recognized, land is considered as converted into money even anterior to a sale when a sale has been directed; and Courts of equity will deal with such real estate as personalty in anticipation of the consummation of the testator’s intention when such intention has be'en unequivocally declared. There must, however, be an imperative and unequivocal direction to sell the real estate, and when the power to sell requires the consent of the parties, interested, there is no conversion until such consent is givefa. And when the sale is dependent upon a contingency, there is no transmutation until the contingency has happened. As said by Lord Cranworth, Chancellor, “ We must consider the property as converted from the time when it ought to have been converted.” Ferrie vs. Atherton, 28 Eng.

Law and Equity Rep., 1. And another