Opinion
12657
May 9, 1929.
Before FEATHERSTONE, J., Edgefield, December, 1927. Affirmed.
Action by W.W. Pinson and others, as executors of the will of L.M. Pinson, deceased, against Lillie V. Pinson and others. From the decree, defendants appeal.
The decree of his Honor, C.C. Featherstone, trial Judge, is as follows:
"The action in this case was instituted for the purpose of having the will of L.M. Pinson, deceased, construed, and the contract of sale of pine timber on the tract of 65 acres of land devised to Clifford Pinson construed, in connection with the said will, the writings of all parties in the premises determined, and for a discovery of any property belonging to the estate of L.M. Pinson, deceased, and praying that the proceeds for the pine timber on said 65-acre tract of land be declared as property of the said L.M. Pinson, passing under the residuary clause of said will.
"At the death of the said L.M. Pinson, an unrecorded deed of conveyance of 17 acres of land to W.W. Pinson was found among his papers, but it had never been delivered, and it is conceded by all parties to this action, that he died intestate as to that tract of land, and that it passed under the residuary clause of his will.
"The said L.M. Pinson on the 10th day of June, 1926, duly executed his last will and testament, and passed away on the 14th day of March, 1927. After the execution of said will, to wit, on the 20th day of October, 1926, the said L.M. Pinson entered into a written contract for the sale of the timber on the said 65-acre tract of land devised to Clifford Pinson, wherein and whereby he agreed to sell the said timber on said place to T.W. Quarles, and received $50 of the purchase money on said contract of sale before his death.
"Since the death of the said L.M. Pinson, the said T. W. Quarles has cut said timber, and the purchase price thereof amounts to $974.18, which amount by agreement of all parties interested has been deposited with the Clerk of Court of Common Pleas in and for Edgefield County, to be held by him subject to the determination of the only issue involved in the matter before me; that is, whether the proceeds of the sale of the timber passed under the will to Clifford Pinson or passed under the residuary clause of the said will. It is contended by Clifford Pinson and Claud Pinson, represented by Mr. Nickles, attorney at law, Abbeville, that the proceeds of the sale of said timber go to Mr. Clifford Pinson under the provision of the will, while the other parties to the action contend that the proceeds of the sale pass to the plaintiff herein. The controversial issue is clear and definite.
"It is urged by Clifford Pinson and Claud Pinson that the contract of sale aforesaid does not revoke the will as to the sale of the timber on the tract of land described, for the reason that the writing was not such as is contemplated by Section 5341, Code of Laws, 1922, Vol. No. 3.
"My opinion is that Section has no application to the facts of this case. That clause applies to subsequent will or written instruments in the nature of will revoking former wills. As I see the matter, it narrows itself down to this question: Does the money from the sale of the timber belong to Clifford Pinson, or does it pass to the executors?
"A contract for the sale of land works a conversion; equity treating the vendor as holding the land in trust for the purchaser and the purchaser as a trustee of the purchase price for the vendor. The vendor's interest thereafter is in the unpaid purchase price, and it is treated as personalty, while the purchaser's interest is in the land and is treated as realty. 13 C.J., 855.
"Where real estate is directed to be sold, equity considers it converted into personalty, even though the election to purchase rests merely with the purchaser. 9 Cyc., 828. This rule applies, even where the purchase is not completed until after the death of the testator. 9 Cyc., 828.
"In the case before me, it will be noted that the testator entered into a contract for the sale of the 65 acres described in the complaint, but in that contract the testator specifically reserved the timber in order to handle it as he saw fit. Then, after the testator had made his will, he conveyed the timber as above mentioned. I hold that this contract revokes the will in so far as it relates to the timber. A contract, made good by a testator after his will for the sale of land thereby devised, is a revocation of such devise in equity, and thereby converts such realty into personalty. 9 Cyc., 828; Loring v. Cunningham, 9 Cush. (Mass.), 87; Donohoo v. Lee, 1 Swan (Tenn.), 119, 55 Am. Dec., 725. See, also, McFaddin v. Lumpkin, 112 S.C. 431, 100 S.E., 168.
"It will be noted that the payments provided for in the contract for the sale of the timber were to be made to L.M. Pinson, the testator, and no provision was made for the payment to any other party.
"If a contract for the sale of land might have been enforced against the vendor had he lived, the conversion from realty into personalty may be completed, even though the vendee had not paid the purchase price, and even though the contract be executory in character. As a result of this principle, an estate under contract of sale is regarded as converted into personalty from the time of the contract, notwithstanding an election to complete the purchase rests entirely with the purchaser, and, if a seller dies before the election is exercised, the purchase money when paid will go to his executors as assets. 6 R.C.L., 1077.
"As is fully discussed in the case of the estate of Edward Bernhard, 134 Iowa, 603, 112 N.W., 86, 12 L.R.A. (N.S.), 1029, the doctrine is fully set out, in which the principle is laid down that the proceeds arising from a contract of this kind pass to the executor as assets. In this case the proceeds of land for which testator had given bond for title, after the execution of his will, passed as personalty under the residuary clause, and not under the clause of disposing of real estate, although after testator's death suit is brought to foreclose a contract.
"In this case the facts were very much as the facts are in the case before me. Money was claimed both by the party to whom the land had been devised and the executor. It was paid into the Court by agreement, awaiting construction of the will. The same question was involved there, and the Court held that it is well established, both in England and in this country, that land which is sold, or contracted to be sold and turned into money, is to be construed as that species of property into which it is directed to be converted, and that, in whatever manner or direction it is given, whether by will, contract, settlement, or otherwise, where such conversion is by contract, it is only necessary that the contract be enforceable. If the contract for the sale of the land or timber could have been enforced against the vendor had he lived, the conversion from realty into personalty may be completed, even though the vendee has not paid the purchase price. It is settled that an estate under contract of sale is converted into personalty from the time of the contract, and, if the seller dies before an election be exercised, the purchase money, when paid, will go to the executors as assets. 12 L.R.A. (N.S.), 1029; Bowen v. Lansing, 129 Mich., 117, 88 N.W., 384, 57 L.R.A., 643, 95 Am. St. Rep., 427; Ametrano v. Downs, 170 N.Y., 388, 63 N.E., 340, 58 L.R.A., 719, 88 Am. St. Rep., 671.
"After a thorough review and consideration of the authorities presented, both by the attorneys for the plaintiffs and the defendants, I am clearly of the opinion that the money arising from the sale of the timber on the 65 acres of land, fully set out in the complaint, passes to the executors of the estate of L.M. Pinson, deceased, and not to the defendant Clifford Pinson. The money in question is now, by agreement, in the hands of the Clerk of Court for Edgefield County. This contract was enforceable in the hands of Mr. L.M. Pinson.
"It is therefore ordered, adjudged, and decreed that the money now in the hands of the Clerk of Court, which arose from the sale of the timber on the premises described in the complaint, passed under the will of the said L.M. Pinson, and is not the property of the defendant Clifford Pinson; and it is further ordered, adjudged, and decreed that the said money, to wit, the sum of $974.18, be paid by L.T. May, Clerk of the Court of Common Pleas of Edgefield County, S.C. to the executors of the last will and testament of L. M. Pinson, deceased, or to their attorneys."
Mr. J.M. Nickles, for appellants, cites: As to equitable conversion: 6 R.C.L., 1065; 9 Cyc., 829; Sec. 5341, Code; 54 S.C. 378; 16 S.C. 40.
Messrs. T.B. Greneker, and J. Wm. Thurmond, or respondents, cite: Sec. 5341, Code has no connection here. A contract by testator made after his will for sale of land to be devised is a revocation of such devise: 9 Cyc., 828. Sale of timber is a sale of interest in real property: 80 S.C. 106. Money from such sale payable to executors: 115 S.C. 107; 9 Cyc., 828. "Lease for years": 29 S.C. 553; 23 C. J., 1143; 13 C.J., 855. An estate under contract of sale is converted into personalty from time of the contract: 12 L.R.A., 1029; 57 L.R.A., 643; 58 L.R.A., 719; 6 R.C. L., 1077; 13 C.J., 855.
May 9, 1929.
The opinion of the Court was delivered by
This is a controversy between the plaintiffs, executors of the will of L.M. Pinson, deceased, and the devisees and legatees under the will, involving the question whether the proceeds of the sale of certain timber should pass to the devisee of the tract from which it was cut, or to the executors, as personal property, to be distributed under the residuary clause of the will.
The facts are these:
On August 7, 1925, L.M. Pinson entered into a written agreement with one E.M. Stover to lease to him for a period of four years a certain tract of land in Edgefield County, containing 65 acres, with an option to purchase it, but expressly reserving all timber suitable or ripe for milling purposes. (This lease does not concern the immediate controversy between the parties except as indicating the reservation by Pinson of the timber rights.)
On June 10, 1926, Pinson executed his will, in which he devised the 65-acre tract to his son, Clifford Pinson, Sr. On October 20, 1926, Pinson entered into a written contract with one T.W. Quarles for the sale of the timber upon said tract for $4 per M. feet, $50 of which he received in cash at the time.
Pinson died March 14, 1927, and after his death Quarles entered upon the tract and cut timber amounting, under his contract with Pinson, to $974.18. By agreement this money has been deposited with the Clerk of Court, to abide the determination of the issue whether it should be paid to Clifford Pinson, Sr., the devisee of the tract of land, or, as personal property of the estate, to the executors to be distributed under the residuary clause of the will, item 12, which is:
"It is my will that any other property that I may have at my death shall be equally divided among my children and my widow, share and share alike, and if any of said property is farm produce, farm implements, or live stock, it may be sold publicly or privately without order of Court."
The matter was heard by his Honor, Judge Featherstone, upon the pleadings and testimony taken by agreement, as to which there does not appear to be any controversy. His Honor filed a decree, dated December 22, 1927, holding that the proceeds of the sale of the timber passed to the executors, and not to Clifford Pinson, Sr., the devisee. From that decree the devisee has appealed.
The sole question in the appeal is whether the executory contract for the sale of the timber upon the 65-acre tract to Quarles revoked the devise of that tract to Clifford Pinson, Sr., so far as the timber thereon is concerned. There seems to be no doubt as to the proposition that a contract for the sale of timber upon a tract of land is a contract for the sale of an interest in real property. Lumber Co. v. D. W. Alderman Sons Co., 80 S.C. 106, 61 S.E., 217, 128 Am. St. Rep., 865. We think that the authorities cited and quoted from in the circuit decree are conclusive upon the proposition that the proceeds of the sale of the timber passed to the executors as personal property.
For the reasons stated by his Honor, the decree is affirmed.
MR. CHIEF JUSTICE WATTS and MESSRS. JUSTICES BLEASE, STABLER and CARTER concur.