Opinion
No. 43/600.
10-11-1917
HYERS. v. TITUS et al.
J. A. Kiernan, of Elizabeth, for the motion. H. B. Herr, of Plemington, opposed.
Bill by Henrietta S. Hyers against Caroline Titus, executrix, and John S. Titus, executor, of Isaac N. Titus, deceased, and Archibald I. Coddington, administrator de bonis non of John Sebring, deceased. Motion to dismiss the bill. Bill dismissed.
J. A. Kiernan, of Elizabeth, for the motion. H. B. Herr, of Plemington, opposed.
BACKES, V. C. This is a motion to dismiss the bill, the allegations of which disclose this state of facts: John H. Sebring died May 4, 1878, leaving a last will and testament, in the first paragraph of which he devised and bequeathed all of his property, both real and personal, to his executors or the survivors of them, in trust for the purpose of paying his just debts; then to hold the remainder in trust for his wife in lieu of her dower, and then the following:
"Item. After the death or marriage of my said wife to collect all investments and all money due my estate, to sell all unsold real or personal property, and after collecting my whole estate into one general fund, to divide the same, share and share alike among my children to whom and to whose heirs, I give the same forever."
His wife and seven children, one of whom was Deborah M. Titus, survived. The widow passed away May 7, 1892. Deborah died intestate November 13, 1892, survived by her husband, Isaac M. Titus, who was appointed her administrator, and two children, the complainant and a brother. In February, 1893, the administrator de bonis non of the testator sold two tracts of land for $2,930, one-seventh of which, amounting to $420, was paid to Titus, as administrator. Isaac M. Titus is deceased, and this bill is filed against his personal representatives to recover the $420; the complainant setting up that upon the death of her mother intestate she and her brother became seised of her share or interest in the lands under the will of their grandfather, by descent. The complainant holds an assignment of her brother's claim.
The complainant can maintain her bill only if the proceeds of the sale are to be regarded as real estate of the testator as of the time of her mother's death. The fee in the lands vested in the executors in trust and the absolute direction to them to sell, together with the blending of the proceeds of the real and personal property into one general fund, to be divided share and share alike among the testator's children, was clearly a conversion of the real estate into personal property as of the time of the testator's death. Welsh v. Crater, 32 N. J. Eq. 177, affirmed 33 N. J. Eq. 362; Clark v. Denton, 36 N. J. Eq. 419; Vanness v. Jacobus, 17 N. J. Eq. 153; Cook Exr. v. Cook Adm., 20 N. J. Eq. 375. Deborah M. Titus' proportionate interest in her father's estate was a vested legacy, and upon her death intestate passed to her administrator, her husband, who under the statute, as it then stood, rightfully appropriated it to his own use. Brown v. Fidelity Trust Co., 82 N. J. Eq. 323, 87 Atl. 222.
The rules of construction laid down in the cases of Roy v. Monroe, 47 N. J. Eq. 356, 20 Atl. 481, Moore v. Robbins, 53 N. J. Eq. 137, 32 Atl. 379, Canfield v. Canfleld, 62 N. J. Eq. 578, 50 Atl. 471, and In re Alabone Estate, 75 N. J. Eq. 527, 72 Atl. 427, relied upon by the complainant as sustaining her position that, the sale not having taken place until after the death of Deborah M. Titus, the proceeds pro tanto retained the character of real estate and descended to her heirs, are not applicable. These cases deal with instances where the directions to sell were for the purposes of the will, and where the purposes failed, for one reason or another.
The further contention that, because the real estate was not sold until after the death of Deborah M. Titus, it retained its character as such until then, and descended to her children as "heirs" under the provision of the will directing a division of the estate "among my children to whom and to whose heirs I give the same forever," is without merit. The word "heirs" was, perhaps, used substitutionally, but this need not be decided. The conclusion arrived at that there was a conversion as of the testator's death and the fact that the first taker survived disposes of the point.
The bill will be dismissed, with costs.