Battenfeld v. Kline

Citations

• 228 Pa. 91
• 77 A. 416
• 1910 Pa. LEXIS 438

Syllabus

<p>Will — Construction—Conversion of realty into personalty — Vested and contingent interest — Power of sale.</p> <p>1. Testatrix gave “all the rest, residue and remainder” of her estate, “real, personal and mixed” to her executor in trust, to collect the interest, rents, issues, profits and income and to pay over the net balance of the same to her husband during his life. She further directed that “at and immediately upon the death” of the husband, the estate “shall be divided in equal shares between such of the children” of the testatrix and her husband “as shall then be living” — naming the children and providing that “if any one or more of the said children shall then be dead leaving issue, such issue shall stand in the place of and be entitled to the share to which such child would have been entitled if such child had survived .... in such manner and in such proportion as said issue would inherit the same if such child had died intestate, seized or possessed thereof.” She gave the executor power to sell the realty “at any time” at private or public sale, and to convey, to hold or reinvest the proceeds in real estate subject to the same trusts, etc., with the proviso that none of the real estate be sold during the husband’s lifetime save by his written consent evidenced by his joinder in the conveyance. Held, (1) that no interest passed to the children in the realty as such; (2) that the testatrix contemplated the exercise of the power of sale after her husband’s death; (3) that an administrator d. b. n. c. t. a. of the decedent could sell the real estate and give a good title in fee simple.</p> <p>2. Conversion of realty into personalty is affected (1) by a positive direction to sell the land, which is an express declaration of intention to convert, (2) by an absolute necessity to sell in order to execute the will, and (3) by such a blending of realty and personalty by a testator in his will as to clearly show that he intended to create a fund out of both real