Opinion
Opinion filed December 8, 1931.
1. — Partition — Wills — Testator Directing Conversion of Real Estate Into Personalty — Limitation on Right to Partition. A partition of lands cannot be made contrary to the intention of a testator expressed in his will, and where a testator directs a conversion of real estate into personalty, in the absence of an election by all the beneficiaries to effect a reconversion, the land is not subject to partition.
2. — Wills — Testator Directing Conversion of Real Estate Into Personalty — Beneficiaries — Before Sale May Elect to Take Land. Where a testator directs land to be sold and the proceeds divided among certain designated beneficiaries, such beneficiaries may before the sale elect to take the land instead of its proceeds.
3. — Same — Same — Same — Election to Take Land — Extinguishes Authority of Executor to Sell Land. Where a testator directs land to be sold and the proceeds to be divided among certain designated beneficiaries, and such beneficiaries have elected and manifested their intention to elect to take the land instead of its proceeds, the authority to sell the land cannot thereafter be exercised by the executor, but is extinguished, as the estate is then reconverted into real property, and the relation of the beneficiaries to the land is the same as if it had been directly devised to them.
4. — Same — Same — Same — Same — Must Be Assented To By All Beneficiaries. Where a testator directs land to be sold and the proceeds divided among certain designated beneficiaries and such beneficiaries elect to take the land instead of its proceeds, such an election must be assented to by all of the beneficiaries or devisees.
5. — Partition — Wills — Testator Directing Conversion of Real Estate Into Personalty — Written Agreement of Beneficiaries — Sale of Land By Private Sale Instead of Public Auction — Election — Reconversion — Partition Permissible. Where a testator directed real estate to be sold and the proceeds divided among certain designated beneficiaries and a written agreement was entered into and signed by all of the beneficiaries to the effect that it was considered expedient and to the best interest of the heirs that said real estate be sold at private sale as soon as a price was offered that was acceptable to all the parties and not at public auction, held such written agreement showed an election to take the property as real estate and a reconversion so as to entitle plaintiffs to maintain an action in partition.
Appeal from the Circuit Court of Cape Girardeau County. — Hon. Frank Kelly, Judge.
REVERSED AND REMANDED.
Spradling Dalton for appellants.
(1) If the terms of the will caused an equitable conversion of the real estate into money upon the death of the widow, still the written agreement of all the heirs not to sell under the will and the renting and retaining of the property for two years prior to this suit was an election to reconvert the property and plaintiffs are entitled to partition. Nall v. Nall, 243 Mo. 247; Griffith v. Witten, 252 Mo. 627; Turner v. Hine et al., 248 S.W. 933. (2) Even though the will directs that the real estate be sold and the proceeds divided the heirs may elect to retain the land as such, and may enjoin a sale thereof by the executor. Gilbert v. Cosgrove, 193 Mo. App. 419, 185 S.W. 181, 182; Conversion and Reconversion, 6 R.C.L. 1090, 1091; 13 C.J. 885-891. (3) The answer admits that "the parties to this cause are seized of the said real estate as tenants in common for the fractional amount plaintiffs allege" and though the will directed a sale of the real estate there was no actual conversion prior to such sale and plaintiffs were entitled to reconvert it prior to that time and having done so, plaintiffs are entitled to partition. Eneberg v. Carter, 98 Mo. 647, 651; Compton v. McMahan, 19 Mo. App. 494. (4) "In the present case, there was certainly no express devise in fee to the executor, nor are there any such words in the will as to raise a fee in him by force of a strong implication. Therefore, the fee remained in the heirs at law, both by the devise to them, as well as by the statute of descents, until it should be divested by a sale by the executor under the terms of the will; and until such sale no conversion could occur. . . . I have been able to find no case where the doctrine of equitable conversion has been so applied as to cut out and dominate the title of the heir except where the donee of the power took a fee by necessary and inevitable implication, or where such fee was in express terms conferred upon such donee; otherwise the title remains vested in the heirs until the donee of the power actually exercises it. . . ." Eneberg v. Carter, supra; See also, Donaldson v. Allen, 182 Mo. 626, 647; Littleton v. Addington, 59 Mo. 275, 278-279. (5) The real estate upon the death of the testator passed to his widow and then to his heirs, subject to the general power of disposal conferred in the will. The executors after they qualified had no interest in the land, but at most a naked power to sell which was not exercised prior to their discharge. Aubuchon v. Lory, 23 Mo. 99; Emmons v. Gordon, 140 Mo. 490; Barnard v. Keathley, supra. (6) The original executors having been discharged almost ten years prior to this suit, and all the parties to this suit having agreed in writing not to sell the property under the will partition in this case could not the contrary to the will but would effectuate the purpose of the testator under the fourth division of the will. Barnard v. Keathley, 230 Mo. 209; Llewellyn v. Llewellyn, 122 Mo. App. 467; Thompson v. McClernon, 142 Mo. App. 429; Nall v. Nall, supra. (7) That the court cannot order a partition contrary to the provisions of the will means that it will not disturb the relative claims of the respective parties named in a will to their distributive share of the land devised. Spratt v. Lawson, 176 Mo. 175, 182. (8) The intention of the testator must be gathered from all the words and four corners of the will. The sole purpose of the power given in subdivision three was to provide funds for the legacies mentioned and by agreement all of these legacies were paid during the administration and distributive receipts filed in 1918. Cox v. Jones, 229 Mo. 53. (9) The purpose of the power of sale under subdivision three having been fulfilled the next and subsequent subdivision controls. See 40 Cyc. 1417. (10) Where the parties take and hold legal title as tenants in common by equitable reconversion under the will of the testator, the provision in the will providing for sale and distribution is not held to be a bar to partition. Nall v. Nall, supra; Turner v. Hine et al., supra. (11) The court had jurisdiction of the subject-matter and of all the parties having an interest in the real estate sought to be partitioned. No parties were acting in representative capacities at the time the suit was filed. The executors de bonis non cum testimento annexo did see fit to enter their appearance in the case. The court should have decreed partition. Sec. 1995, R.S. 1919; Sec. 200, R.S. 1919; Llewellyn v. Llewellyn, supra; Nall v. Nall, supra.
J. Grant Frye for respondents.
This is an action for the partition of real estate. The parties are the heirs and devisees of George Kaufmann, deceased.
The petition alleges that the plaintiffs and defendants are the owners as tenants in common of the real estate described therein, and that each is seized of a designated fractional part, and that the premises cannot be partitioned in kind without great prejudice to the owners thereof. The petition asks that the land be sold and the proceeds divided among the parties according to their respective interests.
The answer admits that the parties to the cause are seized of said real estate as tenants in common for the fractional amounts alleged by plaintiffs, but say that each is seized of a bare legal title held in trust for the purpose of the testator's will.
The evidence discloses that in January, 1917, George Kaufmann died seized of certain real estate in Cape Girardeau County, consisting of a house and lot in the City of Jackson: that it could not be partitioned in kind; that at the time of his death, the heirs of George Kaufmann were his widow, Emilie A. Kaufmann, Louis R. Kaufmann, Otto H.F. Kaufmann, Albert G.H.J. Kaufmann, Matilda Petzoldt, Lillian Rudert, Flora Rudert Brinkopf, Otto Rudert, and Edwin Rudert; that the other defendants were the husbands or wives of the several heirs. The widow died in March, 1925. George Kaufmann left a will, which was admitted to probate on the 10th of January, 1917, the pertinent parts of which are as follows:
"Second: I give and bequeath to my beloved wife, Emilie A. Kaufmann, all of my real and personal property and all of the rent and profits she may derive therefrom during her natural life; and at her death I direct that all of her just debts and funeral expenses shall be paid.
"Third: As soon as convenient after the death of my wife I direct that all real and personal property shall be sold at public sale and the proceeds thereof shall be disposed of in the following manner:
"(a) The sum of six hundred dollars to the children of my deceased daughter, Emma M. Rudert.
"(b) The sum of one dollar to my son, Louis R. Kaufmann, as I have made him advancements.
"(c) The sum of six hundred dollars to my daughter, Matilda F. Petzoldt.
"(d) The sum of six hundred dollars to my son, Albert G.J.H. Kaufmann.
"(e) The sum of one dollar to my son, Otto H.F. Kaufmann, as I have made him advancements.
"Fourth: If after the payments of the debts and bequests herein provided for there be any estate left, then I direct that the residue be equally divided between all of my children or their heirs.
"Fifth: I hereby nominate and appoint my sons, Albert G.H.J. Kaufmann and Otto H.F. Kaufmann, as executors of this my last will and testament."
The executors appointed under the will qualified, and administered on the estate, and on the 13th of February, 1918, made final settlement, and on August 12th filed their final receipts, including distributive receipts of the several heirs and legatees under the will and were finally discharged. Shortly after the death of Emilie A. Kaufmann, the several heirs all entered into the following agreement in writing:
"We, the undersigned heirs and legal representatives of Mrs. Emily Kaufmann, deceased, hereby enter into the following agreement, to-wit:
"WHEREAS, George Kaufmann, by his will, dated May 19, 1916, and recorded in Book 64 at page 390, on January 27th, 1917, provided, in paragraph three of said will that after the death of Emilie Kaufmann, the wife of the said George Kaufmann, all the real estate and personal property, then left out of the estate of the testator shall be sold to the highest bidder at public auction; and
"WHEREAS, it is now considered expedient and to the best interest of the heirs that said real estate be sold at private sale and not at public auction, and that the said personal property be sold at public auction as provided in said will;
"NOW, THEREFORE, it is hereby mutually agreed and covenanted by all the heirs of said George Kaufmann and Emily Kaufmann, that said real estate be sold at private sale as soon as a price is offered for said real estate that is acceptable to all the parties hereto; and we further agree that the personal property be sold at public auction as agreed upon by the parties hereto and by the conditions of said will and testament.
"LOUIS R. KAUFMANN, "MATILDA F. PETZOLDT, "A.G. KAUFMANN, "OTTO H. KAUFMANN, "E. RUDERT, "P. RUDERT, "FLORA M. BRINKOPF, "LILLIAN RUDERT."
Albert G.H.J. Kaufmann and Otto H.F. Kaufmann looked after the real estate, collected the rents, took care of the property, and distributed the proceeds equally among the heirs.
About the latter part of January, 1927, the last two named parties advertised the real estate for sale, and before the sale and on the day set for the sale, this suit was instituted. Immediately thereafter the last two named parties applied to the Probate Court and were granted letters testamentary d.b.n.c.t.a. Albert G.H.J. Kaufmann and Otto H.F. Kaufmann testified that they did not know they had been finally discharged as executors until a day or two before or about the date the property was advertised for sale. The court denied partition, on the ground that the allowance of partition would be contrary to the intention of the testator and would contravene the express terms of the will.
The sole question, therefore, presented to this court for its consideration is whether or not there was a reconversion by the beneficiaries under the terms and provisions of the will.
Where a testator directs a conversion of real estate into personalty, in the absence of an election by all the beneficiaries to effect a reconversion, the land is not subject to partition. A partition of lands cannot be made contrary to the intention of a testator expressed in his will. A discussion of the application of this doctrine may be found by reference to the following cases in Missouri: Williams v. Lobban, 206 Mo. 399, 104 S.W. 58; Nall v. Nall, 243 Mo. 247, 147 S.W. 1006; Turner v. Hine, 297 Mo. 153, 248 S.W. 933; Gilbreath v. Cosgrove, 193 Mo. App. 419, 185 S.W. 1181; Cannon v. Curtis, 175 Mo. App. 84, 157 S.W. 860. It is also a well-settled rule in equity that where a testator directs land to be sold and the proceeds divided among certain designated beneficiaries, such beneficiaries may before the sale elect to take the land instead of its proceeds. When such beneficiaries have so elected and manifested their intention to elect in a sufficient manner, the authority to sell the land cannot thereafter be exercised by the executor, but is extinguished. The estate is reconverted into real property, and the relation of the beneficiaries to the land is the same then as if it had been directly devised to them. In 6 R.C.L., p. 1090, section 22, it is stated:
"This right rests on the presumption that the power of sale given to the executor was intended for the benefit of the beneficiaries, and on the principle that as they are the absolute owners of the entire property in the land, they have the right to direct the disposition to be made of it; and also in consideration of the practical effect of a contrary rule."
Thus, as to the manner of election, such an election must be assented to by all of the beneficiaries or devisees. We are inclined to the view, after careful examination of the authorities upon this proposition, that there was a reconversion so as to entitle plaintiffs to maintain this action in partition. The sole purpose of the will and the power of sale contained therein was to pay these specific legacies. Instead of selling the property as directed by the will, the executors did not attempt to do so until shortly before this suit was filed. The written agreement signed by all of the heirs immediately after the death of the widow and almost two years before the filing of this suit shows, we think, an election to take the property as real estate. This reconversion took place prior to the sale. The heirs and beneficiaries elected not to have the property sold at public sale in accordance with the terms of the will, but to have it sold at private sale if and when a suitable purchaser could be found. We do not think respondents could reject the terms of the will with respect to the manner of sale, and by mutual consent undertake to change the terms of the will in this respect and still contend that there was no reconversion. We are of the opinion that the trial court was in error in entering judgment for defendants.
The judgment is, accordingly, reversed, and the cause remanded. Haid, P.J., and Becker, J., concur.