the authorities of the said orphanage may wish Philadelphia, Pennsylvania), and its successors, to apply it to, but the principal shall only be ex- being the same Baptist Orphanage mentioned in pended for buildings or other permanent im- the above recited will as at Angora, Pa.,' the provements in the discretion of the authorities interest from the said principal to be used for of the said orphanage. such purposes as the authorities of the said orphanage may wish to apply it to, but the principal shall only be expended for buildings or other permanent improvements in the discretion of the authorities of the said orphanage; and the said John B. Hinkson is hereby fully authorized to give any and every proper release, discharge and acquittance to the said Thomas Lees, trustee, or to whomsoever may be trustee at the time having the said property in charge.' Item. All the rest, residue and remainder of my estate I give, devise and bequeath unto my said mother, Elizabeth C. Ashenfelter, absolutely.' "Lizzie May Pike having died within one calendar month after the making of her said last will and testament, to wit, on August 2, 1895, unmarried and without issue, her mother and the mother's husband by declaration in writing dated October 14, 1895, duly acknowledged and recorded, after reciting the will of Lizzie May Pike as above set forth, then proceeded: "Perry C. Pike having died since the decease of Lizzie May Pike, the said Thomas Lees has filed his account in the Orphans' Court of said county, and the same has been confirmed by the Court, wherein he shows a balance of $27,630.62 of the principal of the said estate in his hands; one-third of this sum is claimed by the plaintiff. The said account shows a balance of $594.14 of income in the said trustee's hands; one-sixth of this sum is claimed by the plaintiff. "If the Court shall be of the opinion that the said plaintiff is entitled to the one-third of the said principal and to one-sixth of the said income, then judgment shall be entered herein in favor of the plaintiff for the sum of $9309.23 and costs; if the Court shall be of the contrary opinion, then judgment to be entered herein for the defendant with costs, either party reserves the "And whereas, by reason of the death of the said Lizzie May Pike, unmarried and without issue, within one calendar mon h after the making of her last will and testament, to wit, on the second day of August, in the year of our Lord one thousand, eight hundred and ninety-five, the disposition of property made by the said above recited bequest and devise, became void according to the Act of Assembly in such case made and provided, and the property so as above recited goes to the residuary legatee named in the said last will and testament, to wit, her mother Elizabeth C. Ashenfelter, and whereas it is the desire of the said Elizabeth C. Ashenfelter, that the directions of her said daughter in the premises as expressed in her last will and testament right to a writ of error, or appeal." shall be accomplished and fully carried out. Now, therefore, we, the above named Elizabeth C. Ashenfelter and Frank P. Ashenfelter, her husband, for and in consideration of the premises and of one dollar lawful of the United States of America unto us in hand paid, the receipt of which is hereby acknowledged, have granted, conveyed, assigned, transferred and given, and May 17, 1897. MCCOLLUM, J. This is an apdo hereby grant, convey, assign, transfer and give peal from a judgment entered against the defenunto John B. Hinkson, of the city of Chester, dant in a case stated. It involves the construcin the county of Delaware, and to his heirs, exe- tion of the eighth clause of the will of John L. cutors, administrators and assigns, all the share Pearson, deceased, of whose estate the defendant of the said Elizabeth C. Ashenfelter in the prin- is trustee. By the clause in question the testacipal of the estate now in the hands of Thomas tor devised the real estate therein described to Lees, trustee, arising originally under the will of Perry C. Pike during his life and after his death John L. Pearson, being the same principal and "to his lawful child or children and to their heirs estate above set forth receivable at the death of and assigns." As it appears from the case stated the said Perry C. Pike, to be by the said John that Perry C. Pike died leaving lawful issue, and B. Hinkson held in trust, safely invested, and the that his sons, his daughter, and his granddaughter income therefrom paid semi-annually to the said attained the age of twenty-one years, the prinElizabeth C. Ashenfelter during her life, and upon cipal question for our determination is, when did her decease the said principal to be conveyed, the estate in remainder vest in his children? The granted, paid, transferred and handed over to the defendant claims that it did not vest "until after Baptist Orphanage (now located in the city of his death," and the plaintiff claims that as Perry The Court, CLAYTON, P. J.. entered judgment for the plaintiff on the case stated. Whereupon this appeal was taken, assigning for error this action of the Court. E. H. Hall, for appellant. C. Pike had no children at the death of testator For the reasons above stated we concur in the it was contingent until the birth of a child to him, conclusion of the learned Court below that the at which time it vested, subject to open and let plaintiff is entitled to one-third of the principal, in after-born children, and subject also to a con- and one-sixth of the income, as defined by the tingency which might divest it. case stated. Judgment affirmed. It seems to us that the plaintiff's claim accords with the true interpretation of the devise and the decisions in like cases: Keller v. Lees, 176 Pa. 402; Blanchard v. Blanchard, 1 Allen (Mass.) 227. But it makes no difference in the result in Jan. '96, 598. this case whether the estate vested in the children at their birth or on their attaining the age of twenty-one years. The contingency on the hap W. M. S., Jr. Supreme Court. February 10, 1897. Seeds et al. v. Burk et al. Will-Power of sale-Words "authorize and empower-Sale for payment of debts-Duty of purchaser-Conversion of real estate. Personal estate is the primary fund for the payment of debts of a decedent, and the real estate can be ordered to be sold only where there is an allegation of the insuffithe land as may be necessary to make up the insufficiency ciency of the personal estate, and then only so much of can be sold. pening of which the estate might have passed, under the will, to the children of Price or of Smith was the death of the life tenant "without leaving lawful issue to survive him or leaving such The expression in a will "authorize and empower" in issue who should not live to the age of twenty-itself implies discretion; there is no authority to coerce one years nor their lawful issue." The contin- the trustee to sell, and where, in his judgment, it does not appear to be "for the best advantage" of the estate he gency did not occur and therefore the only per- may refuse to sell, so that the question of conversion lies sons now interested in the estate or in the ques- wholly in the discretion of the trustee. tion when the remainder vested, are the children of the life tenant and their heirs and assigns. Perry C. Pike had three children, who, in his lifetime attained the age of twenty-one years. One of them, Pearson Pike, died in the lifetime of his father. He left to survive him a daughter, who attained full age and died before the life Appeal of Taylor C. Burk, Henry W. Cullis tenant. The fund created by the sale, under the and Annie E. Parsons, defendants, who were sued Price Act, of the land devised as aforesaid, was with Samuel McIlvain, executor, etc., of Maggie in existence in the lifetime of Pearson Pike, and McIlvain, deceased, from the judgment of he was receiving interest by direction of his fath- the Common Pleas of Delaware Coutny, in an er on $5000 of it. The fund was a substitute for action brought by Samuel H. Seeds and Joseph the land sold. What was the interest of Pearson H. Hinkson, executors of T. B. Bowers, dePike in this fund? We think it was a vested in- ceased. terest which could not be divested, if at all, ex- This was an action of debt on a bond given by cept by the occurrence of the contingency on Maggie McIlvain, brought by S. H. Seeds and which the devise over depended. The extent of Joseph H. Hinkson, executors of T. B. Bowers, the interest could not be definitely ascertained at deceased, against the executor of Maggie Mellhis death because it might be reduced by the birth of other children entitled to share in the fund. It was, however, a descendible and devisable interest. vain and Taylor C. Burk, H. W. Cullis and Annie E. Parsons, terre tenants of land of which the said Maggie McIlvain died seised. On the trial, before CLAYTON, P. J., the bond The devise in question was to the lawful child was given in evidence and the following facts or children of the life tenant and to their heirs also appeared: and assigns. It was a devise to the whole class without restriction to the member or members who survived him. It was unlike the devise in any case cited by the defendant to sustain his, She made and executed a last will, and testacontention "that the interest of the children of ment, as follows: Maggie McIlvain died on July 1, 1891, seised in fee and possessed of certain lands in the county of Delaware. Perry C. Pike did not vest until after his death." "I, Maggie McIlvain, of the city of Chester, The contest for the fund being virtually between county of Delaware, and State of Pennsylvania, the devisee of the daughter of Pearson Pike and being of sound and disposing mind, memory and the surviving son and daughter of Perry C. Pike, understanding, do make and publish this my last there is no room for the application of the rule will and testament, hereby revoking any wills by or principle for which Stewart's Estate, 147 Pa. me at any time heretofore made. 383, is cited as authority. "Item first. I direct all my just debts and fu neral expenses to be fully paid by my executor hereinafter named, as soon as conveniently may be after my decease. desirable, and judgment it should sale or exchange in such real or personal security or securities as he may deem proper and right, and to take and receive the income thereof, and "Item second. All the rest, residue and re- to pay and appropriate the same to the same purmainder of my estate, real, personal and mixed of pose and in the same names as he is hereinbefore whatsoever kind and wheresoever situate, I give, directed with respect to the profits and income of devise and bequeath to my trustee hereinafter my real estate; and should such re-investments named, his heirs, executors or administrators in be made by my said trustee on any unimproved trust nevertheless to keep the same invested in real estate, then and in that event, I hereby authorgood and safe security or securities and to receive ize and empower my said trustee to and collect all rents, issues and profits thereof improve and dispose of the same as in and to pay over the net proceeds thereof to my his be father, Samuel McIlvain, for and during the term for of his natural life, . . . . and from and after the same death of the said Samuel McIlvain, to divide and mortgaging, exchanging and sale of the same as pay over the corpus of the said trust estate among is conferred upon him with reference to the real my brothers and sister. . . . . Respecting any por- estate of which I may die seised by this my will. tions or pieces of my real estate of which I may "And lastly. I hereby nominate, constitute die seized, I do hereby authorize and empower and appoint my father, Samuel McIlvain, to be my said trustee to improve the same by the erec- the sole executor and trustee of this my last will tion of dwelling houses thereon or such other and testament." buildings as in his judgment may be for the best advantage to my said estate, and for this end, and to accomplish this purpose, I hereby authorize my said trustee to borrow money upon the security thereof and to execute and deliver good and sufficient bonds and mortgages therefor; to divide the same into such lots or parcels as in On November 18, 1892, Samuel McIlvain, exhis judgment may best improve my said estate, ecutor of Maggie McIlvain, deceased, granted and to sell and dispose of all or any of the said and conveyed a part of the lands of the decedent lots with the improvements thereon, either at to Henry W. Cullis, by deed dated November public or private sale or sales, and either for cash 18, 1892, reciting the power of sale conferred upon or upon ground rents, or partly for cash and part-him by her will, and the said deed was duly rely for ground rents, at such time or times and corded. in such parts or parcels as my said trustee may in his discretion deem proper and right, and in like manner either at public or private sale, to sell, dispose or extinguish any, all, and every ground rent which, upon any sale of my said real estate may be reserved by my said trustee, and upon all and every such sale, I do hereby authorize and empower my said trustee to receive, take and accept such price or prices for my real estate as may be reasonably had or gotten for the same, or any part or parcels thereof, and by proper deed, deeds, conveyances or assurances in the law, to be duly executed. acknowledged and perfected to grant, convey and assure my said real The jury were directed to find a verdict for the estate and every part or parcel thereof unto the plaintiffs for one thousand one hundred and sixtypurchaser or purchasers thereof in fee simple, free two dollars and thirty-three cents, subject to the and clear of and from all trusts herein given or filing of a point reserved, that point being whedeclared, and without liability on the part of any ther the several sales by Samuel McIlvain, exesuch purchaser to look after the application of cutor and trustee to the terre tenants in this case the purchase money. And whenever my said divested the lien of the plaintiffs' debts. trustee shall sell or exchange any of the said real The Court subsequently directed judgment for estate hereby given to him, I do authorize and plaintiffs and disposed of defendants' point in the empower him to invest the proceeds of every such following opinion: On September 22, 1891, Samuel McIlvain, executor of Maggie McIlvain, deceased, granted and conveyed a part of the lands of the decedent to Taylor C. Burke, by deed, reciting the power of sale conferred upon him by her will, and the said deed was duly recorded. On November 18, 1892, Samuel McIlvain, executor of Maggie McIlvain, deceased, granted and conveyed a part of the land of the decedent to Annie E. Parsons, by deed, reciting the power of sale conferred upon him by her will, and the said deed was duly recorded. The defendants asked the Court to charge the jury that the sale and conveyances by Samuel McIlvain, executor and trustee, under the will of Maggie McIlvain, to the several terre tenants in this case discharged the lien of the plaintiff's claim, and a verdict should be in favor of the terre tenant. son. "This was an action of debt upon a bond given yers. If an insolvent testator, having no debts by Maggie McIlvain, which was unpaid at the of record against him, can be permitted to direct time of her death. She died seised and possessed an irresponsible executor without any security of certain real estate which the plaintiffs contend, to protect creditors, to sell all the testator's lands by virtue of the statute, was subject to the lien at private sale, according to his own discretion, of this unscheduled debt. The lien has been re- and thereby discharge the liens of all his debts, the gularly revived and continued according to the purchase money could be in the trustee's pocket directions of the statute. Some of the defendants before the creditors would know of the sale or were terre tenants by purchase from the trustee could come into Court and demand security. In named in the decedent's will. There is no ques- this case the terms of the trust intimate the intion as to the amount due. The defendants, how- solvency of the trustee as well as of the execuever, contend that by the terms of the will, her tor and cestui que trust, all three being one perlands became converted into personalty and that, by the power of sale contained in the will, the "The will in the case now before us, directs, lien of this debt was divested. The defendants first, 'Item, I direct all my just debts and funeral rely chiefly upon the cases of Willing v. Peters, expenses to be fully paid by my executor.' This 7 Pa. 287, and Cadbury v. Duval, 10 Pa. 265. is the only direction to the executor. There is These two cases decide that a sale by an executor, nowhere in the will a direction to him to sell any either for the payment of debts or for distribution, of her lands for the purpose of the payment of by virtue of a positive direction in the will of the her debts. As executor, therefore, no power decedent, either by public or private sale, made was given to sell her land for the payment of in good faith, discharges the len of unscheduled debts or for distribution. True, she directed him debts, and that the purchaser takes free from the to pay her debts, but under our law it was his licn of the debt and is relieved from all liability duty to pay them from the personal estate. And to see to the application of the purchase money. where no directions are given to sell real estate "It must be conceded, under these authorities, for that purpose, the executor on exhausting the that where the direction in the will is clear, posi- personal estate, must apply to the Orphans' tive and imperative to sell, either for the pay- Court for power to sell lands. The lands of the ment of debts, or for the purpose of distributing decedent are not assets for the payment of debts the estate, it works a conversion of the land into until the personal estate is exhausted. Our law money, and unrecorded liens are discharged: has provided a simple and safe proceeding in such Cadbury v. Duval so decides, and it does not a case. It makes it the duty of the executor when seem to have been doubted or reversed by any there is no personal property to pay debts, to subsequent case. This case, however, is certainly petition the Orphans' Court and to prove to the upon the verge, and must not be extended be- Court that the decedent had left debts and not yond what it decides. In that case there was no sufficient personal estate to pay them. Then, question of insolvency. The history of the case and not till then; can the land become assets for states that Mrs. Duval, the trustee, was rich at that purpose. Nor can the order of the Court be the time the sale was made. In the present case carried out until adequate security has been eninsolvency of the trustee as well as of the cestui tered. que trust, has been hinted. It may be true that "The will in this case then proceeds to create Maggie McIlvain, the daughter of the cestui que what may be called 'a spendthrift trust,' devising trust, was only a 'man' of straw to represent her the whole residue, including all the testator's father, and that the lands she devised were in lands unto her executor whom she also makes equity his property, and the intention was to cover the same from claims of his creditors, but this does not appear in the testimony, and must therefore be banished from the case. her cestui que trust and trustee, with certain directions and powers, none of which order or require any of the real estate to be sold, either for the payment of debts or for distribution. Instead "In Cadbury v. Duval, the order in the will was of ordering the property to be sold, she gives positive to sell the land, and it directed that the specific directions for its preservation during the net proceeds should be first applied to the pay-life of her father. True, she directs her trustee ment of the testator's debts; secondly, that the (her father) and his heirs after her death, to disurplus should be distributed among his children. vide and pay over the corpus of said trust estate Here was a clear and undoubted conversion by to the remainder men. The word 'pay' clearly a positive direction in the will to sell. The dan- relates to the accumulated money from the esger to be feared from extending the principles tate. The word 'divide' means to make partition decided in that case must be obvious to all law of the remaining real estate. The proper word, Willing v. Peters, 7 Pa. 287. if the estate were then all personalty, would be essarily required the sale of the real estate in or'to distribute' the residue, etc. der to pay debts and ascertain the residue. The "To make the case more clear let us suppose debts being unscheduled, the purchasers were that the testator, which would have been the more not bound to see to the application of the purregular way, had appointed one person as her chase money, and therefore took their several executor, another person as trustee, and her lands discharged of the lien of the decedent's father, the cestui que trust of the estate. In such debts. It makes no difference that the power of case we would have four independent interests sale was conferred upon a person calling him before us. First the executor, who could have trustee by name. If it was necessary for him to done nothing but take charge of the personal es- sell to pay the debts, he is executor of the will, tate, pay the debts and hand over the balance however he may be named. to the trustee; or, if there was not sufficient estate to pay the debts, to make that matter known by petition to the Orphans' Court and sell the It was impossible to ascertain the residue withlands for that purpose. The second person be-out first paying the debts; and it was impossible fore us would be the trustee, who could but to pay the debts without selling this real estate. Wherever there is a testamentary trust to sell carry out the trust and preserve the trust estate for the cestui que trust. The third person inter-real estate to pay debts, or to pay debts and legaested would be the cestui que trust, who could cies, or to pay debts and distribute, the purchaser only see that his trustee properly managed and takes title from the executors clear of the lien of preserved his estate, and gave him the rents, is- decedent's debts; except that if all the debts are sues and profits thereof, and if there was any personal estate to see that it was safely invested. The fourth person in interest would be the remainder men, who would have the right to see that their estate was not wasted. "None of the three rules which are said to work a conversion of realty into personalty exists in this case. There is no direct and unqualified order to sell the land. There is no necessity to sell in order to execute the will. There is no such blending of the personal and real estate as requires a sale in order to separate and divide it. The rule for a new trial is, therefore, refused and judgment is now ordered to be entered on the verdict against the defendants de terris." Defendants appealed, assigning the following as errors: 1. The Court erred in not affirming defendants' point, ab supra. 2. In entering judgment for the plaintiffs on the point reserved. 3. In not entering judgment for the terre tenants on the point reserved. W. B. Broomall, (with him David F. Rose and D. M. Johnson), for appellants. scheduled, a duty devolves upon the purchaser to see to the application of his purchase money to the payment of such scheduled or specified debts. Cadbury v. Duval, 10 Pa. 265. It makes no difference as to this effect where the power is merely directory if necessary to pay debts. Grant v. Hook, 13 S. & R. 259. The reason of this rule is that wherever it is trust to sell lands clear of the lien the purchaser necessary to the execution of a valid testamentary to recorded liens existing at the time of the detakes title clear of the lien. This does not apply cedent's death, because the executor takes subject to such liens. Where, however, the trust commences at the instant of the decedent's death then where it is necessary to execute the trust to as well as the lien commences at the same time, pay the lien, the purchaser takes the land discharged of liability for the lien. But where the lien is specified so that it cannot be said to be necessary to discharge the lien to execute the trust, (because the purchaser can provide for it), then the purchaser is not dis- Act of February 24, 1834, sec. 13, P. L. 75. There is here neither a direction to sell nor a The execution of the trust under the will nec-power given to sell for the payment of debts nor |