Stake v. Mobley

Boyd, J., delivered the opinion of the Court. The principal question in this case is whether or not the provisions of the last will and testament of /Joseph Hoover worked an equitable conversion of all his realty into personalty at the time of his death. He died in 1887 leaving surviving him eight children. On the 28th of August, 1888, Virginia T. Mobley, one of his daughters, and her husband, Harry H. Mobley, executed a mortgage to the late Judge Edward Stake to secure the sum of five hundred and twelve dollars borrowed from him in which they “do grant unto the said Edward Stake all right, title, interest and estate in and to the following described property situate in Hagerstown, Maryland, known as the ‘Hoover House,’” etc. She died in 1891, intestate, leaving her husband and one child, Cecelia M. Mobley, surviving her.

On May 31st, 1905, William H. Armstrong filed a bill in equity in the Circuit Court for Washing- ⁴¹⁰ ton County in which he alleged that he had purchased from the executors of Joseph Hoover the property known as the “Hoover House,” and that the final account of the executors had been stated in the Orphans’ Court of that county, whereby they distributed the proceeds of the sale pf property purchased by him, distributing to Cecelia M. Mobley the share of her mother, although not yet paid to her, and ignored the mortgage to Edward Stake. The bill alleges that the mortgage was a lien on that share, and was a cloud upon the plaintiff’s title, and prays- the Court to construe the will, to direct the executors as to the proper and legal manner of distribution of the estate and that his title to the property may be relieved of the cloud resting upon it by reason of the mortgage. The cause was heard on an agreed statement of facts and a decree was passed which declared; (i) that the will operated as an equitable conversion of the real estate left by Joseph Hoover into personalty, at the time of his death, and (2) that the mortgage to Edward Stake did not constitute a lien upon the .property and was of no effect or validity as a mortgage lien upon said property, or. any portion thereof. From that decree the executors of Edward Stake appealed.

As the will - is short we will copy it as it appears in the record, omitting only the formal beginning and conclusion. It is as follows: "First. After my debts and funeral charges rf paid I be queth as follows. Item I give and bequeth to my Grandchild Edman Canan five hundre dollars to be used for to educate hin and the bal of my esstate I divide shar and shar alike unto my children or my hairs.

And lastly I do hereby constitute and appoint my two sons George D. and Elder Hoover to be ny sole Executors with full power to sell and cony all ny property real pursonal and mixed wich I may die posesed of of this ny last wil and testament.” It is dated September 28th, 1886, and .was duly executed. As it is the duty of the Court to endeavor to ascertain from ⁴¹¹ the will the intention of a testator, it is always unfortunate when one is drawn as this is, but we must construe it as we find it. There is but little conflict between the authorities as to the general principles applicable to an equitable conversion by will, bur the difficulty is in their application to particular cases. When a testator manifests a clear and unmistakable intention that real property belonging to his estate shall be sold and converted into money, it is in equity generally treated as so converted at the time of his death, in the absence of some provision or expression in the will which contemplates a postponement of the time of conversion.

The general rule “that lands devised to be sold are thereby turned into money, and construed in equity as personal estate"” was recognized by our predecessors many years ago, Hurtt v, Fisher, 1 H. & G. 88 , and in Thomas v. Wood, 1 Md. Ch. 296 , the Chancellor said: “In the eye of a Court of equity the will of the testator had converted the real into personal estate, and the actual conversion by a sale could not be necessary to give validity to rights founded upon the equitable principle.” That case has often been cited with approval by this Court. There is generally little room for controversy when there are mandatory words directing the sale or giving the power of sale in imperative terms, as. an absolute imperative direction to sell real property at all events will ordinarily work an immediate conversion. We use the words “generally,” “ordinarily,” etc., advisedly in stating these rules as there may be exceptions owing to peculiar conditions — such for example when land is devised to be sold, and the proceeds of sale are directed to be paid upon a trust w’hich is void, the land is not thereby converted into money: or when the purpose for which conversion is directed fails or is no longer necessary, as illustrated by the cases of Rizer v. Perry, 58 Md. 112 ; Cronise v. Hardt, 47 Md. 433 ; Orrick v. Boehm, 49 Md. 72 , and others that might be cited. - In this will there is no express direction to sell, and the appellant contends that the intention of the testator to convert the realty into personalty cannot be gathered from the will, ⁴¹² and that brings us to the real question to be determined. The agreed statement shows that the debts, funeral expenses, costs of administration and the legacy to the grandchild far exceeded the personal estate of the testator, and that in order to pay them it was necessary to sell a part of the real estate.

One lot was sold by the executors in 1887 for three hundred dollars, another in that year for thirty-five hundred and ten dollars. After the sale of those properties the debts, funeral expenses, costs and legacy were paid in full and a balance of $59.10 distributed. The sale of the “Hoover House” was not made until recently — seventeen or eighteen years after the death of the testator. There was then no necessity to sell it in order to pay the debts, etc., and the question is whether the will manifested a clear and unequivocal intention of the testator to have all his real estate sold and converted into money, for any purpose.

It would be going quite far to lay much stress on the expression used by the testator, “I bequeath as follows,” for we cannot fail to see that whoever drew the will was not learned in the law, and hence it would not be an altogether fair inference that the testator necessarily meant by that term to treat all of his estate as personalty. But the fact remains that he did use a term that ordinarily refers to personal property, and hence it at least does not conflict with any other part of the will that might seem to treat the estate as personalty. The testator left eight children and his property consisted of less than a thousand dollars of personalty, and the three parcels of real estate — the two previously sold and the “Hoover House.” We do not find in the record what the latter sold for, but it was evidently worth much more than either of the others. The . testator knew that some part of his real estate would have to be sold to pay his debts, funeral expenses and the legacy, and he also knew that the real estate could not be divided into eight parts.

He could of course have left his real estate to his eight children as tenants in common, but he said (disregarding the spelling in the will) “and the'balance of my estate I divide share and share alike unto my children or their heirs.” ⁴¹³ “To divide is to separate and bestow in shares; to part an entire thing; to make partition of among a number.” 9 Am. & Eng. Ency, of Law, 678. He evidently did not mean to simply give the balance of his estate to his children as tenants in common, but expressed his intention of dividing it so that each one would have his share — or to follow the above definition “to separate and bestow in shares” or “to make partition of” it among his children. If that was all, his intention might be said to be still in doubt.

But he gave his executors (again correcting the spelling) “full power to sell and convey all my property, real, personal and mixed which I may die possessed of” — not power to sell a part or so much as was necessary to pay his debts, etc., but all of it. Why give them power to sell all of it if not for the purpose declared in the item just preceding that clause —so as to divide it between his children? It would seem therefore that the only way to carry out the intention of the testator was to sell all his real and personal property, pay his debts, funeral charges,.costs of admintration, other expenses and the legacy, and then divide the balance