Dunshee v. Dunshee

Citations

• 234 Pa. 550
• 83 A. 422
• 1912 Pa. LEXIS 685

Syllabus

<p>Will — Conversion—Devise—Charge on real estate.</p> <p>1. A provision by a testator that “my executors may sell my real estate and make deeds to the purchasers, or divide the whole or what remains after this, between my heirs,” does not convert real estate into personalty, nor create any absolute necessity for the executors to sell in order to carry out the provisions of the will; nor does it take away the right of any devisee to partition. If the testator directs that the indebtedness of one of his sons shall be charged against such son’s share, such direction may be carried out through the process of partition by charging the indebtedness on the share as owelty.</p> <p>2. Where a testator directs the “balance of my estate to be divided into seven shares one of which shall go to each of my children,” and further directs -that “my executors may sell my real estate and make deeds to the purchaser or divide the whole or what remains after this, between my heirs,” he discloses no intention to blend his real and personal estate so as to create a fund to be bequeathed entirely as money.</p> <p>3. Where a testator devises his real estate to his children, and charges the indebtedness of one of his sons on such son’s share, and partition proceedings are instituted to divide the real estate, it is the duty of the court before decreeing partition to ascertain the amount of the son’s indebtedness which is to be charged upon the son’s share. If this is not done, and an appeal is taken from the decree awarding partition, the appellate court will not attempt to ascertain and adjudicate such indebtedness, although all the parties join in requesting that such action should be taken. In such a case the decree of partition will be affirmed and the record remitted to the lower court in order that snch court may determine and fix the amount of the indebtedness, and embody the result in the decree for partition.</p>