Sill v. Blaney

Citations

• 159 Pa. 264
• 28 A. 251
• 1893 Pa. LEXIS 1506

Syllabus

<p>Partition — Tenants in common — Will—Conversion.</p> <p>Testator died seized of an undivided half interest in certain land. By his will he directed that this land “ shall not be sold under any circumstances, unless it should become necessary to sell the same to pay debts, without the consent of my brother and sisters, and, if it should become necessary to sell the same, the proceeds of the same shall be applied to the support aud maintenance of the family so long as they may remain together, and whatever is left after the separation shall be divided share and share alike between my brother and sisters then living,” and also “ that my brother Thomas M. Sill shall collect the rents of my share of the real estate and apply the proceeds to the support and maintenance of the family.” At the time of the testator’s death the family referred to consisted of the mother and three sisters. The mother and one of the sisters subsequently died, leaving two sisters living together as the family. Testator left other sisters, and children of deceased sisters. The two sisters constituting the family, and the trustee to collect rents substituted in place of the brother who had died, filed a bill for partition, naming as defendants the other tenant in common, and testator’s other sisters and the children of his deceased sister. Held:</p> <p>1. That as there was no absolute direction to sell the land there was no equitable conversion of it.</p> <p>2. That the question of equitable conversion concerned all the devisees and not a stranger, and that the tenant in common could not raise this question to bar the right to partition: Chew v. Nicklin, 45 Pa. 84.</p> <p>3. The testator did not die intestate as to this land.</p> <p>4. That, as all parties having any interest in the land under the will had been joined in the action, there was no such uncertainty as to the title as would defeat partition.</p> <p>5. That the trustee appointed by the will to collect rents was a mere agent in whom