Opinion
Argued February 1, 1889
Decided March 5, 1889
Henry Brewster for executors, appellants. B. Vanderhoeven for Charles Lythgoe et al., appellants.
L.A. Gould A.J. Skinner, for Mark Lythgoe, appellant. Edward S. Peck for respondent.
The important question is whether the direction for conversion is, by the terms of the will, absolute and imperative, so as to be complete to all intents and purposes, or whether the conversion directed is for the purposes of the will only. If the latter, then if those purposes fail, or do not exhaust the proceeds, the property unapplied, whether the estate has been actually sold or not, will devolve according to its original character. ( Gourley v. Campbell, 66 N.Y. 169.) Here the controversy is between Maria Linden, the widow respondent, and the residuary legatees, and, according to the construction given, the first gains and the other class loses. Was there a conversion so far as the widow was concerned? The residuary legatees are the next of kin and heirs-at-law of the testator, and he directed the proceeds of the sale of his real estate to be given to them, and as non-resident aliens the doctrine of conversion would, if necessary, apply in their favor. (Lewin on Trusts [7th ed.] 812.) He may be deemed to have known it and framed his will for their benefit. This was the view of the General Term. That court regarded it as clear that "the testator intended that his estate should be converted into personalty in order that his alien brother and sister might take." It was, in fact, unnecessary to accomplish that object; as to all others except the state they could take and hold as heirs or devisees. (Chap. 38, Laws of 1875.) There is however, nothing to indicate that his purpose was to give the widow more than the law entitled her to demand.
It is plain he wished her to get no part of his estate, and, indeed, cut her off with $1, and directed his executors to devote, if necessary, the rest of his property to resisting any attempt she might make to get more. Of course, if his language requires an out and out conversion, this exclusion of the widow is of no moment, but it is of some aid in getting at his intent. We are of opinion that as, to the widow, there was no conversion of the realty, and that her rights are not increased by the provisions of the will in that respect. She is entitled to her dower in the real estate of which the testator died seized, and if he died intestate as to any portion of his personal estate, she is entitled to a distributive share of that portion. ( Lefevre v. Lefevre, 59 N.Y. 434.) She neither gains nor loses through the provisions of the will. Her rights are independent of them. The testator devised his real estate to his half brother and half sister. The will contains no words from which an intimation can be gathered that he intended to impress a new character on that estate, or that either the power of sale or its exercise should change the direction of this bounty, or alter the essential nature of the property so characterized. No wish of the testator is expressed which requires a sale except for some purpose of the will itself. If not required for that purpose a conversion will not be presumed. ( Chamberlain v. Taylor, 105 N.Y. 185.) If Linden had left no will, the widow's rights in the real estate would have been limited by her dower interest; and there is nothing in that instrument or the circumstances of the case which can increase her share. If a sale is necessary, the residue of the proceeds of the land will belong to the heirs. If unnecessary for any purpose directed by the will, they are entitled to it in its present form, and a sale against their objection should not be decreed. They have a right to that, and "the notional conversion" will subsist only until the cestui que trust, who is competent to elect, intimates his intention to take the property in its original character. ( Seeley v. Jago, 1 P. Wms. 389.)
The appeal must prevail and the judgment of the General and Special Terms be reversed and new trial granted, with costs to all parties, to be paid out of the fund.
We are furnished with a record showing a separate appeal by Martha Lythgoe from the same judgment, but differing in no other respect from the case just considered, and to which, as one of several appellants, she was a party.
Her appeal should be dismissed as unnecessary, without costs to either party.
All concur, except EARL, J., not voting.
Ordered accordingly.