Miller v. Payne

delivered the opinion of the Court:

The first contention of the appellant is that there was no conversion of the real estate. This contention is obviously untenable, for the will expressly provided that the property should be sold one year after the death of the testatrix, and the proceeds divided between her children. That such a provision operates as an equitable conversion is too well established to admit of argument. Iglehart v. Iglehart, 26 App. D. C. 209; Smithers v. Hooper, 23 Md. 273; Reiff v. Strite, 54 Md. 298; Forysth v. Forsyth, 46 N. J. Eq. 400, 19 Atl. 119; Re Fuller, 86 Hun, 47, 33 N. Y. Supp. 194. And, in our view of the case, this conversion is in no way affected by the fact that the heirs instead of the executor executed the deeds, since the proceeds of the sales were treated exactly as they would have been had the executor himself conveyed the property. Such a conveyance, in the circumstances, does not indicate an intention on the part of the heirs to take the property in its original state, but merely an intention on their part to hasten the conversion by assisting the executor in carrying out the provisions of the will. Miller urged these sales because he was desirous of having the real estate speedily converted into money. His real-estate firm negotiated each sale, and for so doing received a commission which was deducted from the proceeds of each. Moreover, he was asked during the hearing before the auditor whether he had made any claim to any part of the proceeds of the first sale, and replied that he “accepted a statement from Mr. Thompson (counsel for the executor) in the beginning that it would not be proper to dis*403tribute this money until the administration year was up." All this negatives the idea of a reconversion. The will directed the sale of the realty in one year after the death of Mrs. Payne, and, while this operated in law as an immediate conversion, it did not authorize the executor to execute a deed until a year had elapsed. The sales, however, were actually made within one year, and this is probably one reason why the heirs were required to sign the deed. Certainly a reconversion cannot be assumed from the bare fact that the heirs joined in the conveyance, when the executor was permitted to retain the proceeds of such sale for distribution as though he himself had executed the conveyance.

We see no merit in the second contention of appellant, that the above gifts to Walter did not operate as an ademption of his legacy. Wallace v. Du Bois, 65 Md. 153, 4 Atl. 402; 2 Woerner, Am. Law of Administration, 2d ed. sec. 448; Wms. Exrs. 1334; Van Houten v. Post, 33 N. J. Eq. 344; Richards v. Humphries, 15 Pick. 133; Benjamin v. Dimmick, 4 Redf. 7; Keipers Estate, 5 Pa. Co. Ct. 568.

Sec. 1630 of the Code [31 Stat. at L. 1434, chap. 854] has been referred to, but we find it unnecessary to determine whether its provisions govern the interpretation of this will or not. Said section is as follows: “A provision for or advancement to any person shall be deemed a satisfaction, in whole or in part, of a devise or bequest to such person contained in a previous will, if it would be so deemed in ease the devisee or legatee were the child of the testator; and whether he be a child or not, it shall be so deemed in all cases in which it shall appear, from parol or other evidence, to be so intended.” The first clause of this section merely extends the common-law rule that previously obtained in this District, and places devisees and legatees to whom the testator does not stand in loco parentis, upon the same basis with children and grandchildren. The second clause apparently was intended to embrace within the common-law rule gifts, whether specific or general, and whether for a fixed or an uncertain sum, when it appears, “from parol or other evidence,” that such was the intention of the testator.

*404In tbis case the bequest is from a person in loco parentis, and it appears, from both parol and other evidence, that the advancements were intended as an ademption of the legacy, and therefore it is immaterial whether the above provisions of the Code are applicable or not. As before stated, Mrs. Payne, in order to establish her son near her, advanced to him nearly $2,500, with which he purchased and conducted a half interest in a hotel property. She took no security or evidence of indebtedness from him, and repeatedly stated to various witnesses during the time these payments were being made, and shortly thereafter, that the money given Walter would be deducted from his share of her estate at her death. Declarations made under these circumstances form part of the res gestee, and are therefore admissible on the question of the intent of the testatrix. Hine v. Hine, 89 Barb. 507; Rogers v. French, 19 Ga. 316; Graves v. Spedden, 46 Md. 527; Dilley v. Love, 61 Md. 603; Van Houten v. Post, 32 N. J. Eq. 709. It would be contrary to every principle of equity and subversive of justice to hold, under the facts surrounding this case, that Walter W. Payne, having previously obtained from his mother, prior to her death and subsequent to the making of her will, sums of money aggregating substantially one half of her estate, is now entitled to one fifth of the remainder. As the will discloses, her estate at the time these advancements to Walter were made was of uncertain value, consisting almost entirely of realty. It may well be, therefore, that she then had no idea she was giving Walter so much in excess of his portion. That the relation of debtor and creditor existed between them is disproved by the utter absence of any evidence of indebtedness, or any evidence tending to show such relation.

Holding, as we do, that this will effected an equitable conversion of the realty, it follows that Miller’s deed was in effect merely an assignment of whatever interest Walter had as a legatee. The intervention of a third party under such conditions does not change the status of the case in any way, for he can claim no higher right than was assigned him. He took a one-fifth interest, subject to the advancements made to Walter, and, *405if those advancements exceed such interest, it is his misfortune. In accepting such an assignment without waiting until the executor had stated his account he took a speculator’s chance, and must not now complain because he lost. As was well said in Hopkins v. Thompson, 73 Mo. App. 401: “It is not in the power of a third person to impair or embarrass the personal representative in the settlement of an estate by dealing with the heirs upon the supposition that their interest is of a fixed or certain character. Nor can the other heirs be deprived of some portion of their estate by the intervention or intermeddling of a stranger so as to destroy the equality of descent and distribution.”

In the present case the will converted the realty into personalty; the gifts of money to Walter exceeded his distributive share, and were intended, when made, to take the place of and did in law adeem his legacy. Therefore Miller took nothing by his assignment; and the order must be affirmed, with costs.

Affirmed.