Opinion
August 6, 1929.
1. PETITION: Demurrer: Admissions: Ownership of Real Estate. A demurrer charging that a petition for the partition of real estate does not state a cause of action admits all facts therein well pleaded. It admits an allegation that the testator at the time of his death owned real estate situated in this State and described in the petition.
2. ____: ____: Foreign Will: Debts and Legacies: Chargeable Upon Real Estate. Where the will was probated in California, the domicile of the testator, and a certified copy was duly filed in the proper probate court in this State, and it gave certain specific legacies to testator's children, and the rest and residue of his estate to them in different fractional portions, a demurrer to the petition in a suit to partition his real estate in this State devised by the residuary clause, containing an allegation that "there is more than sufficient property in California to pay all debts and legacies," does not admit that the real estate in this State is not chargeable with the payment of the debts and special legacies. Such being the will, if there was not sufficient personal property in the estate to pay debts and legacies, then both debts and legacies became a charge upon and payable out of the real estate devised by the residuary clause, whether situated in this State or California.
3. WILL: Debts: Pecuniary Legacies: Premature Partition. Where a will, after bequeathing pecuniary legacies, bequeaths and devises the rest and residue of the estate, the legacies are a charge upon and payable out of the residuary real estate, in case of a deficiency in the personal estate, and must be paid out of the real estate passing by the residuary clause; and until they are paid, the real estate is not subject to partition among the devisees or legatees to whom the clause gives the residue, or among their grantees. Personal property is the primary fund for the payment of debts and pecuniary legacies, but where the personal estate is insufficient and the will manifests an intention that debts, legacies and costs of administration are to be paid out of the estate, the residuary devisees and legatees take only after the costs, debts and pecuniary legacies are paid.
4. ____: Real Estate: Equitable Conversion into Personalty. The equitable conversion of real estate into personalty depends upon the intention of the testator as manifested by his will, and in order to be effective there must be either (a) a positive direction to sell, or (b) an absolute necessity to sell in order to execute the will, or (c) such a blending of real and personal estate by the testator in the will as to manifest his intention, expressly or plainly implied, to create from the blended realty and personalty a fund for the purpose of distribution. Where the will released to one child all his existing debts, bequeathed named sums of money to two others, and gave the rest and residue of his estate to all six children, one-fifth each to four of them and one-tenth to each of the other two, there was no such blending of the realty and personalty as created from the blended estate a fund for the purpose of distribution.
5. ____: ____: ____: Necessity to Sell to Pay Legacies: Extraneous Evidence: Burden: Demurrer. Equitable conversion of real estate into personalty cannot be presumed, but it exists where the will manifests a necessity to sell real estate in order to pay pecuniary legacies charged upon the real estate, and where such purpose is manifested by the will, though not expressly stated, the necessity for the conversion may be established by extraneous evidence; and where the conversion is dependent on the fact that the testator, after the payment of his debts, did not own or leave sufficient personal property to pay the pecuniary legacies, a demurrer to the petition to partition the real estate, although it does not allege that fact, should not be sustained, since the burden is on the defendant to show, both by pleadings and evidence, the absence of sufficient personalty to pay the legacies. If the will on its face does not manifest a conversion of the real estate into personalty, the burden rests upon defendant in the partition suit to plead, and to show by extraneous evidence, a conversion to pay legacies, and that there was not sufficient personal property to pay the debts and pecuniary legacies.
6. ____: Reconversion. An equitable conversion of real estate having occurred, a reconversion does not take place unless the election to reconvert embraces the interests of all the owners. And if defendant in the partition suit has not elected to reconvert, a reconversion is not effected.
7. ____: Equitable Conversion: Extent: To Pay Legacies. Unless a distinct intention to convert real estate into personalty appears from the will, the equitable conversion is effectuated only for the purpose for which, and to the extent to which, it is authorized by the terms of the will. In the absence of such manifest intention, if personal property left by the testator was sufficient to pay pecuniary legacies, equitable conversion never began; if the personal property is not sufficient to pay them, the conversion of realty into personalty was pro tanto, by necessity, effectuated, but when enough of the real estate has been sold by the executor to pay the pecuniary legacies the conversion ends.
8. ____: ____: Power to Sell to Pay Debts and Legacies: Limited Period: Non-Action of Executor. A clause in a will by which testator expresses his desire that "my said executor shall be allowed such time, not exceeding five years in all, as he may, in his judgment, deem to be to the best interests of my estate, within which to administer upon my estate and to make distribution thereof" was a limitation upon the power of the executor to sell real estate to pay pecuniary legacies, to a period of five years from the date of the grant of domiciliary letters, and an expressed intention that the estate should be finally distributed within that period. But if the personal property is insufficient to pay the debts and legacies, and it is necessary to sell real estate in order to pay them, the non-action of the executor cannot be permitted to defeat the payment of pecuniary legacies shown to be a charge upon the real estate, nor does the power to sell such real estate for the purpose of paying them cease to exist until they are paid, but the executor having failed to sell the real estate thus converted the courts have power to order him to sell in order that the expressed purpose of the will may be accomplished.
Corpus Juris-Cyc. References: Conversion, 13 C.J., Section 26, p. 861, n. 91; Section 27, p. 861, n. 93; Section 29, p. 862, n. 96; Section 30, p. 863, n. 98; Section 35, p. 867, n. 19; Section 40, p. 869, n. 38; Section 44, p. 871, n. 47; Section 88, p. 889, n. 33. Executors and Administrators, 24 C.J., Section 651, p. 169, n. 61. Wills, 40 Cyc., p. 1386, n. 85; p. 2011, n. 41; p. 2014, n. 44.
Appeal from Circuit Court of City of St. Louis. — Hon. John W. Calhoun, Judge.
REVERSED AND REMANDED.
W.W. Henderson and J.H. Allen, Jr., for appellant.
(1) The authority to sell contained in the will of deceased is only discretionary and not positive and mandatory. (2) It is firmly settled that the equitable conversion of realty into personalty by power of a direction in a deed or will to sell only takes place where the direction is positive and absolute. In Matter of Tatum, 61 N.Y. 513, 169 N.Y. 514; In Matter of Coolidge, 85 A.D. (N.Y.) 295, 303; In Matter of Bingham, 127 N.Y. 296; Nagle's Appeal, 1 Harris, 260; Story's Equity Jurisprudence, sec. 1091, chap. 21. (3) In order to work a conversion of real estate into personalty, there must be either a positive direction to sell or an absolute necessity to sell, in order to execute the will. Scholle v. Scholle, 113 N.Y. 261; Scott's Estate, 37 Pa. Sup. Ct. 198; 13 C.J. 864, sec. 32; Brown v. Wimer, 261 Ill. 543. (4) Where there is no positive direction to sell, but a mere power to sell, partition can be had. Sauerbier's Estate, 202 Pa. 187; Neely v. Grauthern, 5 8 Pa. 437; Yerkes v. Yerkes, 200 Pa. 423; Thompson v. Hart, 58 App. Div. (N.Y.) 439; Dana v. Murry, 122 N.Y. 604; Barnard v. Keathley, 230 Mo. 210. (5) Even where there is a mandatory and positive direction to the executor to sell the real estate of the deceased, and the real estate is thereby converted into personalty, the devisees may elect to reconvert it into real estate and take the land and not the proceeds thereof, and this does not require the unanimous action of all the devisees, when such an election will not impair the interest of the others. Turner v. Hines, 297 Mo. 153; DeLashmutt v. Teetor, 261 Mo. 412. (6) A conveyance of the lands by the beneficiaries is evidence of an election to take the land and not the proceeds of the sale thereof, and conveyance may be made by part of the beneficiaries, if the estate is of such a character that the conveyance by one or more of the distributees will not impair the interest of others. Turner v. Hine, 297 Mo. 162; Eby v. Adams, 135 Ill. 80; McDonald v. O'Hara, 144 N.Y. 566. (7) The presumption is against conversion by will, which is a legal fiction introduced on equitable principles to effectuate the intention of the testator. It is only to be resorted to when actually necessary to carry out the testator's purpose. A direction to convert must be positive and the instrument resorted to must decisively fix on the land the quality of money. The direction to sell must be imperative and explicit. In re Marr, 240 Pa. 38; Scott's Estate, 37 Pa. Sup. Ct. 198; Henry v. McClosky, 9 Watts, 145; Boshert v. Evans, 5 Whort. 551. (8) Partition of lands may be had before final settlement of the estate, where the personal property belonging to the estate is more than sufficient to pay all valid demands and claims against the estate. Barnard v. Keathley, 230 Mo. 209; Chrisman v. Divina, 141 Mo. 122; Tanner v. Tanner, 199 Mo. App. 145; Sec. 2006, R.S. 1919. (9) The discretionary power given the executor to sell has expired by the express terms of the will. Certainly five years is ample time to administer upon the estate — four years longer than allowed by the law in Missouri — and if not held to be a limitation on this discretionary power to sell, then the executor may hold on until all the Fidel Ganahl children have joined the deceased in the great beyond before making distribution. (10) The primary provision in the will is that the estate should be distributed within five years. Authorizing the executor to sell is the secondary provision, as the distribution is in no way dependent upon the sale of the real estate. The law in Missouri has already made distribution of the real estate located in Missouri. The will provides that the estate may be otherwise disposed of. The law has already disposed of the Missouri real estate. (11) The clause "authorize the executor to sell, lease or otherwise dispose of all or any part of my estate," clearly indicates that it was the intention of the testator to give the executor that power only in the event it became necessary. The will had already devised the real estate to the children. It does not say the real estate should be sold and the proceeds therefrom should be distributed to the legatees and devisees. There could be no purpose or intention in the mind of the testator other than to permit its sale, without order of court, if it became necessary to pay debts and legacies. A will should be construed as a whole. Every clause should be considered in order that the court can arrive at the true intention of the testator. Stewart v. Jones, 219 Mo. 614; Hill v. Hill, 261 Mo. 61. (12) When by a will the power to sell land of the testator is given for a specified purpose, which no longer exists, it is the general rule there is no power thereafter. In the absence of a clearly expressed intention to the contrary. 31 A.L.R. 1405. (13) It is well settled that the power of sale is not inherent in the office of trustee, but he has such powers only as are conferred by the instrument, either expressly or by clear implication. 31 Cyc. 1043-1053; 2 Beach on Trusts Trustees, sec. 557; 2 Perry on Trusts, secs. 764, 498; Young v. Bradley, 101 U.S. 782. It was not the intention of the testator that the executor must sell all the lands remaining in their hands after the expiration of the five years and divide the proceeds among the beneficiaries named in the will. (Emphasis ours.) Wisdom v. Wilson, 59 Tex. Civ. App. 592; Richardson v. Sharpe, 29 Barb. (N.Y.) 222; Dunshee v. Goldbacher, 56 Barb. (N.Y.) 579; Dwyer v. Dwyer, 231 S.W. 672. (14) In no event does the present suit contravene the provisions of the will. For it does not disturb the relative claims of the respective parties named in the will to their distributive share of the land devised, but effectuates the purpose of the testator. Spratt v. Lawson, 176 Mo. 182; Barnard v. Keathley, 230 Mo. 209; Sikemeier v. Galvin, 124 Mo. 368; Dunshe v. Dunshe, 234 Pa. 550; Sauerbier's Estate, 202 Pa. 187; Yerkes v. Yerkes, 20 0 Pa. 423.
Alphonse E. Ganahl, Pro Se; Gillespie Dempsey of counsel.
(1) Points of appellant's brief dealing with the doctrine of equitable conversion under a will, are beside the issue before the court, and the assertion of equitable reconversion by choice of less than all in interest of the residuary distributees is contrary to reason and squarely denied by the very authorities which appellant cites as in support thereof. Turner v. Hines, 297 Mo. 153; Eby v. Adams, 135 Ill. 80; McDonald v. O'Hara, 144 N.Y. 566; DeLashmutt v. Teetor, 261 Mo. 412. (2) Partition, before distribution, of the land in suit and public sale thereof by a commissioner appointed by the court, are directly contrary to the intent of the testator expressed in his will set forth in the petition, and for that reason prohibited by the statute. Secs. 2005, 555, R.S. 1919; Cannon v. Cannon, 175 Mo. App. 84; 24 C.J. 156; Hatt v. Rich, 59 N.J. Eq. 492; Larco v. Casanueva, 30 Cal. 560; 20 R.C.L. Partition, sec. 4. The following authorities cited by appellant support the ruling upon the demurrer herein: Hill v. Hill, 261 Mo. 55; Stewart v. Jones, 219 Mo. 614, 641; Barnard v. Keathley, 230 Mo. 209; Spratt v. Lawson, 176 Mo. 175; Sikemeier v. Galvin, 124 Mo. 367. (3) Even if the five-year period "desired" by the testator as an extension of the time allowed his named executor for administering upon the estate be regarded as a limitation upon the powers vested in him by the separate provision for sale, lease or other disposition of the estate, the petition, nevertheless, is subject to demurrer for insufficiency, because it affirmatively shows that when this action was instituted, the executor had not had five years within which to sell the property located in Missouri, where his powers commenced only with issue of letters to him on October 4, 1921. Emmons v. Gordon, 140 Mo. 499; Bank of Seneca v. Morrison, 200 Mo. App. 169; DeLashmutt v. Teetor, 261 Mo. 412. (4) The five-year clause in the will does not refer to nor qualify the preceding separate and distinct grant of power to sell vested in the executor, but refers only to the extra time which the testator wishes the executor to be allowed "within which to administer upon the estate and make distribution thereof;" and the duty and authority of the executor to administer upon the estate and make distribution does not expire even with final settlement, but continues until in fact the estate has been fully administered. 23 C.J. 1091; Wyatt v. Stillman Inst., 303 Mo. 94. If the five-year clause, however, be regarded as applying to the powers of sale and other disposition vested in the executor by the preceding sentence, then the general rule applies that where a will confers on executors or trustees a power of sale and specifies the period of time within which it is to be exercised, the power does not cease because of the failure to exercise it within the time prescribed, and it may be exercised after the expiration of the period in the absence of a clear expression in the will to the contrary; and such is the construction of the will in suit by the courts of the domiciliary jurisdiction. 31 A.L.R. 1395; Kidwell v. Brummagim, 32 Cal. 437; Ensley v. Ensley, 558 S.W. 294, 105 Tenn. 107; 23 C.J. 1092, sec. 251; Bayley v. Sloper's Executors, 160 N.E. 277.
This is an action for partition of real estate. The construction of the will of Fidel Ganahl is involved, and plaintiff's right to partition depends upon a construction favorable to him. A demurrer, averring that the amended petition failed to state facts sufficient to constitute a cause of action, was filed. The trial court sustained it. Thereupon plaintiff refused to plead further, the trial court entered judgment in favor of defendants, and plaintiff appealed.
It is necessary to set forth the petition. Omitting caption and signatures it reads:
"Plaintiff, for cause of action, states that he is a resident of St. Louis County, Missouri.
"That the defendant Alphonse E. Ganahl is a resident of the city of St. Louis, State of Missouri.
"Plaintiff further states that plaintiff and defendant and Emma C. Ganahl, Sr. M. Xaveria ( nee Corinne L. Ganahl), Beatrice H. McDonald ( nee Beatrice H. Ganahl) and Fidelia Fleming ( nee Fidelia Ganahl) are brothers and sisters and all are children of Fidel Ganahl, who died in California and lived there prior to his death, and whose estate is now being administered upon by Alphonse E. Ganahl, as executor, in said County of Riverside and State of California, and that said Alphonse E. Ganahl is also administering upon the estate of the deceased in Missouri, under and by virture of an appointment and the grant of letters testamentary, in the Probate Court, City of St. Louis, Missouri;
"That this said estate has been in the course of administration in said St. Louis, Missouri, since the 4th day of October, 1921, and that all of the debts of said deceased in Missouri have been paid, and that there is more than sufficient property in California, the former domicile of the deceased, to pay all debts and legacies;
"That the will of said Fidel Ganahl, deceased, has been duly filed and admitted to probate in the County of Riverside, State of California, being filed on the 6th day of July, and letters testamentary issued thereunder on the 18th day of July, 1921, and an authenticated copy thereof filed in the Probate Court, City of St. Louis, Missouri, which is in words and figures as follows:
"`WILL.
"`In the name of God, amen:
"`I, Fidel Ganahl, a widower, of Corona, Riverside County, California, being of the age of 71 years, do make, publish and declare this my last will and testament, hereby revoking all former wills by me at any time made.
"`First. I direct that all my just debts be paid promptly.
"`Second. I release and discharge my son, Emil C. Ganahl, from his debt to me or to my estate for all loans heretofore made by me to him, and for all other sums heretofore paid out by me as endorser of his notes, or in settlement of his business obligations.
"`Third. I give and bequeath to my daughter, Emma C. Ganahl, the sum of three thousand dollars ($3,000).
"`Fourth. I give and bequeath to my son, Emil C. Ganahl, the sum of two thousand dollars ($2,000).
"`Fifth. I give, bequeath and devise all of the rest, residue and remainder of my property of every kind and nature whatsoever and wheresoever situated to the following named persons, in the following described proportions, to-wit:
"`One-fifth thereof to my daughter, Emma C. Ganahl;
"`Another one-fifth thereof to my daughter, Corinne L. Ganahl (now Sr. M. Xaveria);
"`Another one-fifth thereof to my daughter, Beatrice H. Ganahl; and
"`Another one-fifth thereof to my daughter, Fidelia Ganahl Fleming;
"`One-tenth thereof to my son, J. George Ganahl;
"`And the remaining one-tenth thereof to my son, Alphonse E. Ganahl.
"`Sixth. I hereby nominate and appoint my son, Alphonse E. Ganahl, the executor of this, my last will and testament, and request that he shall not be required to give any bond for the faithful performance of his duties as such executor; and it is my desire that my said son Alphonse E. Ganahl shall accept and retain such compensation as may be allowed by law for his services as executor of my estate. And I hereby authorize my said executor to sell, lease or otherwise dispose of all or any part of my said estate without the order of any court at either public or private sale, with or without notice, and upon such terms as my said executor shall deem best. It is my desire that my said executor shall be allowed such time, not exceeding five (5) years in all, as he may, in his judgment, deem to be to the best interests of my estate, within which to administer upon my estate and to make distribution thereof.
"`In Witness Whereof, I have hereunto signed my name and affixed my seal at Los Angeles, California, on this 31st day of January, 1921.
"`(Seal) FIDEL GANAHL.
"`The foregoing instrument, consisting of two (2) typewritten pages including this page, was at the date hereof by said Fidel Ganahl signed, sealed, published as and declared to be his last will and testament, in the presence of us, who at his request and in his presence and in the presence of each other, have subscribed our names as witnesses hereto.
"`S.F. MacFARLANE, residing at Los Angeles, California; "`CLAIR S. TAPPAAN, residing at Los Angeles, California; "`ROLAND H. MULFORD, residing at Long Beach, California.'
"That Sr. M. Xaveria ( nee Corinne L. Ganahl) and Emma C. Fischer ( nee Emma C. Ganahl), Beatrice H. McDonald ( nee Beatrice Ganahl) and Fidelia Fleming ( nee Fidelia Ganahl) have conveyed by deed, which deed has been duly recorded in the city of St. Louis, Missouri, to your petitioner, J. George Ganahl, all of their right, title and interest in all of the real estate, and other estate, left to them by their deceased father, Fidel Ganahl;
"That each of the above-named last parties inherited under the terms of the will of their deceased father a one-fifth interest in said real estate located both in California and in the city of St. Louis, Missouri;
"That your petitioner, under the terms of said will inherited a one-tenth interest in said real estate;
"That defendant Alphonse E. Ganahl inherited and now owns one-tenth interest in said real estate;
"That by virtue of the conveyance to your petitioner of the interest of Sr. M. Xaveria ( nee Corinne L. Ganahl), Emma C. Fischer ( nee Emma C. Ganahl), Beatrice H. McDonald ( nee Beatrice Ganahl) and Fidelia Fleming ( nee Fidelia Ganahl) and by virtue of your petitioner's inheritance from the estate of his deceased father Fidel Ganahl of one-tenth interest therein, he is now the owner of nine-tenths interest in the hereinafter described real estate, and the defendant Alphonse E. Ganahl is the owner of one-tenth interest in said described real estate, lying and being in the city of St. Louis, State of Missouri, to-wit: [A description of the real estate, consisting of sixteen lots, more or less, is omitted, as it is not necessary in the consideration of any issue discussed and presented.]
"Plaintiff further states that the above-described real estate, owing to its character, is more valuable and could be sold for a greater sum of money than if it was divided in kind, and said real estate cannot be partitioned in kind without great prejudice to the owners thereof.
"Wherefore, the premises considered, plaintiff prays judgment in partition, and that the same may be ordered sold at public sale, and the court appoint a commissioner to sell the same; that the proceeds of the sale thereof, when made, be divided between plaintiff and defendant, according to their respective interests herein; and for such other and further orders in the premises as to the court may seem meet and proper."
Annexed to the petition is a legal and competent affidavit of plaintiff, which shows that it was subscribed and sworn to by him on July 20, 1926, before a notary public.
I. Whether real estate is charged with pecuniary legacies is a matter of the testator's intention. The will fails to advise us as to the kind or extent of his property, other than he gives and bequeaths pecuniary legacies to two of his Demurrer: children, and gives, bequeaths and devises the Admission: rest, residue and remainder of his property of Legacies: every kind and nature whatsoever and wheresoever Real Estate. situated, in described proportions, to certain named children. From the partition petition involved, the demurrer admits that testator owned at his death real property situated in the city of St. Louis as described. The petition herein does not develop the kind or extent of property the testator owned in the State of California, his domicile, or elsewhere than in Missouri. The petition goes no further than stating "and that there is more than sufficient property in California, the former domicile of the deceased, to pay all debts and legacies." If there was not sufficient personal property in the estate to pay debts and legacies, then both debts and legacies became a charge upon and payable out of the real estate devised by the residuary clause of the will, as we show.
The previous question involves the construction of a will, and all rules of construction are designed to ascertain and give effect to the intention of the testator.
The common use of the phrase "charge upon realty" expresses the idea that the realty may, on deficiency of the personalty, be sold and the proceeds used to satisfy the legacies. It is the well-settled rule that, where a will, after bequeathing pecuniary legacies, gives, bequeaths and devises the rest, residue and remainder of the estate, the legacies are a charge on and are payable out of the residuary real estate, in case of a deficiency of the personalty, and must be paid out of the realty otherwise passing under the residuary clause of the will. [42 A.L.R. 656; McQueen v. Lilly, 131 Mo. 9, 31 S.W. 1043.] A similar rule is effective with respect to the debts of the testator. [O'Day v. O'Day, 193 Mo. 62, 91 S.W. 921, 4 L.R.A. (N.S.) 922.] Thus, personal property is the primary fund for the payment of pecuniary legacies, but, where that is insufficient and it is apparent that the will, as herein, manifests the intention of the testator that debts, legacies and the costs of administration shall be paid out of the estate, it is implied that the residuary devisees and legatees take after payment of the pecuniary legacies. [Rinehart v. Rinehart, 98 W. Va. 93, 126 S.E. 402, 42 A.L.R. 649.]
II. Having ruled that the pecuniary legacies are a charge upon the residuary estate, first on the personalty, and if that be insufficient, then on the realty, we next consider whether the will, supplemented by the surrounding facts and Equitable circumstances, as shown by plaintiff's petition, Conversion. develops an equitable conversion of the real estate, described in the petition, into personalty.
The equitable conversion of realty into personalty depends upon the intent of the testator as developed by the will, and to that end the whole instrument must be considered. [Griffith v. Witten, 252 Mo. 627, 161 S.W. 708; 13 C.J. 860, 861.] In order to effect an equitable conversion of real estate into personalty by will, there must be either (1) a positive direction to sell; or (2) an absolute necessity to sell in order to execute the will; or (3) such a blending of real and personal estate by the testator in his will as to manifest his intention, expressly or plainly implied, to create from blended realty and personalty a fund for the purpose of distribution. [Llewellyn v. Llewellyn, 122 Mo. App. 467, 99 S.W. 809; 2 Story's Eq. Jur. (14 Ed.) sec. 1091; Marr's Estate, 240 Pa. 38; 13 C.J. 862, 863.]
In Llewellyn v. Llewellyn, supra, l.c. 473-4, GOODE, J., states that an equitable conversion occurs, "when there is a positive direction to the executor to sell the real property, or a necessity to sell in order to distribute legacies given in the will or comply with its other terms, or when there is such a blending of the real and personal estate by the terms of the will, as to show that the testator intended to create a common fund out of both species of property and bequeath it or its income as money."
A reading of the will demonstrates that it does not contain an express direction to sell either the realty or the personalty. The authority given the executor to sell on the face of the will is a discretionary power. He may execute it or refuse to execute it at his pleasure, unless the surrounding facts and circumstances develop an absolute necessity to sell in order to execute the will. Nor do we think that there is such a blending of real and personal estate by the testator in his will as to manifest his intention, expressly or plainly implied, to create from blended realty and personalty a fund for the purpose of distribution. While the will gives, bequeaths and devises the rest, residue and remainder of his estate in described proportions to named children, it does not contemplate the creation of a fund of money to be distributed as such. The devolution of property in described proportions cannot be said to create a fund out of which the beneficiaries only are to be paid. It was the intention of the testator, we think, to give, bequeath and devise his property in the form in which he left it, subject to the necessity to sell to pay debts and legacies.
III. Many cases support the doctrine that equitable conversion obtains where the necessity to sell exists in order to carry out the provisions of the will. [13 C.J. 862, and cases cited.] Pursuant to the postulate, it has been held that equitable conversion results where the will develops a Necessity necessity to sell real estate in order to distribute to Pay pecuniary legacies, which are charged upon the real Legacies: estate. [Greenman v. McVey, 126 Minn. 21, 147 N.W. Extraneous 812, Ann. Cas. 1915D, 430; Stake v. Mobley, 102 Md. Evidence. 408, 62 A. 963; Duffield v. Pike, 71 Conn. 521, 42 A. 641; Stalder v. Stalder, 105 Neb. 367, 180 N.W. 566.] Such necessity to sell is merely declarative of the testator's intention, which alone governs. However, an equitable conversion of realty into personalty in order to pay pecuniary legacies cannot be presumed. Extraneous evidence was necessary to establish conversion. The conversion was dependent upon the fact that the testator, after the payment of his debts, failed to own and leave sufficient personalty to pay the legacies given in his will. As the petition herein did not allege that fact, it could be developed only by extraneous evidence, and the burden was on defendant to develop the absence of personalty by pleadings and proof. In other words, as the face of the will does not develop a conversion of realty into personalty, defendant was cast with the burden of showing, by extraneous evidence, a conversion of the realty to pay legacies. Consequently the trial court erred in sustaining a demurrer to the petition.
IV. It is evident, under our decisions, that a reconversion does not occur unless the election to reconvert embraces the interests of all the owners. [Turner v. Hine, 297 Reconversion. Mo. 153, 248 S.W. 933.] Therefore, as defendant did not elect to reconvert, a reconversion was not effected.
V. An equitable conversion takes effect at the death of the testator. [Greenman v. McVey, 126 Minn. 21, 147 N.W. 812, Ann. Cas. 1915D, 430; 13 C.J. 869, 870, 871; Griffith v. Witten, 252 Mo. 627, 161 S.W. 708; DeLashmutt v. Teetor, 261 Mo. 412, 169 S.W. 34.] The extent of an equitable conversion Extent of depends upon the intention of the testator. It seems Equitable to be well settled, unless a contrary intention Conversion. distinctly appears, that equitable conversion is effectuated only for the purposes for which, and to the extent to which, it is authorized by the terms of the will. [13 C.J. 871.] Thus, where it is necessary to sell real estate to pay legacies, and it is not the intention of the testator to convert completely, the conversion is for the particular purposes of the will and for the benefit of the pecuniary legatees, and the fund produced by the sale is regarded as personalty only for the payment of legacies. [James v. Hanks, 202 Ill. 114, 66 N.E. 1034; McHugh v. McCole, 97 Wis. 166, 72 N.W. 631, 65 Am. St. 106, 40 L.R.A. 724.] It is said in Harrington v. Pier, 105 Wis. 485, 82 N.W. 345, 50 L.R.A. 307, 76 Am. St. 924, that the application of the doctrine of equitable conversion of realty into personalty ends where the absence of necessity for it begins. Thus, if it should be found upon a trial that the personalty left by the testator was not sufficient to pay debts and legacies, then an equitable conversion of the realty into personalty pro tanto was by necessity effectuated. All realty left by the testator was available for the purpose, until the executor had sold sufficient realty to execute the provisions of the will. If the personalty was not sufficient to pay debts and legacies, when the executor has sold sufficient realty for that purpose, the right and power in him to convert the remainder of the realty ends, provided the discretionary power to sell, given in the will, terminated.
VI. Plaintiff maintains that, under the terms of the will, the discretionary power given in the will to sell limited the executor to a period of five years to exercise the power to sell the realty, and that, on his failure to exercise it within that time, the powers ceased to exist. We think it was the intention of the Limited testator to limit the discretionary power of the Period executor to sell to a period of five years from the to Sell: granting of letters. The limitation of five years Non-Action to exercise the general power to sell is of Executor. demonstrated by the clause in the will, wherein the testator desires that the executor shall be allowed such time, not exceeding five years in all, within which to administer upon his estate and make distribution thereof. This clause, we think, directly referred to the domiciliary administration in California. Thus, the five years began to run from the date of the domiciliary letters, for the testator intended that the estate should be finally distributed within that period.
However, if the personalty was insufficient to pay debts and legacies in that order, and it was necessary to sell the realty in order to pay such, then the non-action of the executor cannot be permitted to defeat the provisions of the will and the intention of the testator. [Grove v. Willard, 280 Ill. 247, 117 N.E. 489.] If the pecuniary legacies are shown to be a charge upon the realty, then it is the duty of the executor to sell such portion of the realty as is required for that purpose, and the power does not cease to exist until that purpose is accomplished. If an executor, when a conversion is effected, fails to sell the property converted, it is within the power of the courts to order him to sell to accomplish the purposes of the will. [In re McElevey, 305 Mo. 244, 266 S.W. 123; Bayley v. Sloper (Mass.), 160 N.E. 275; Grove v. Willard, 280 Ill. 247, 117 N.E. 489; 31 A.L.R. 1395.]
As the face of the will failed to establish an equitable conversion, it required the proper pleading and extraneous evidence to develop that fact, as well as any other affirmative defense defendant might have, and the burden was on him to that end. It follows from what we have said that the judgment must be reversed and the cause remanded. It is so ordered. Henwood and Cooley, CC., concur.
The foregoing opinion by DAVIS, C., is adopted as the opinion of the court. All of the judges concur.