
    
      In Re THOMPSON’S ESTATE.
    1. It is the settled law of this District that a widow is not dowable of an equity of redemption.
    2. The Orphans’ Oourt has no jurisdiction to apply the doctrine of equitable conversion in its administration of a decedent’s estate. The application of that doctrine belongs solely to courts of equity, where the relief should be sought.
    3. Where the land is sold by the trustees during the mortgagor’s life, the surplus, after satisfying the debt, is payable to him or, if he dies before the time of payment, to his executors, administrators or assigns. If, however, it is sold after his death intestate it is payable to his heirs.
    4. The formal directions in a deed of trust to secure a debt as to the application of the surplus in case the property is sold to satisfy the debt are generally superfluous, as the law itself directs the application. When inserted they are often inaccurately expressed, and when such appears to be the case they are to be interpreted as meaning just what the law would direct in case of their omission.
    5. The deceased had executed in his lifetime a deed of trust upon real estate to secure a debt, his wife releasing her dower by joining in the deed. By its provisions the trustees were directed in case-of default to sell and after satisfying the debt to pay over the residue to the grantor “his executors, administrators or assigns.” After his death the property was sold under the trust. Held, that the widow was not entitled to any part of the surplus, but the same was distributable to the heirs.
    No. 1,737.
    Probate Docket.
    Decided October 8,1888.
    The Chief Justice and Justices Cox and Merrick sitting*.
    Appeal from a decree of the Orphans’ Court disallowing a decedent’s widow any share in the surplus arising from a sale under a deed of trust.
    The Facts are stated in the opinion.
    Messrs. H. T. Taggart and H. R. Webb,-for plaintiff:
    If the surplus proceeds of the sale were real estate, the Court below was without jurisdiction to pass said order, because the only proper subject of administration is personalty; if a particular fund arising from the sale of a decedent’s real estate continues to be real and not personal estate, it does not form the subject of administration at all. Sweezy vs. Willis, 1 Bradf., 496; and see Spence, Ex’r., vs. Ragan, 9 Gill, 481; and Stewart et al vs. Patterson, Ex’r., 8 Gill, 58.
    It follows that the Court below should have administered the fund according to the quality it actually had in the hands of the administrator, which was that of personal property.
    But even upon the assumption that the Orphan’s Court had equitable jurisdiction in the premises, the order passed was erroneous; that which had been realty was lawfully and properly converted into personalty, and is in the hands of the administrator in accordance with the declared intention of the grantor, and it should be administered as such.
    Where real estate is ordered to be sold, it becomes personalty and shall go accordingly, whether the direction is by will or otherwise. Fletcher vs. Ashburner; Leading Cases in Equity (White & Tudor), vol. 1, part 2, p. 1120 (star page 829).
    A careful consideration of the terms of the deed shows that it contains no ambiguities or uncertainties, and that no contingency has been left unprovided for; -that, in fact, nothing has been left open by the grantor to be settled by inference, implication or construction as to the matter of his intention.
    By it an option was substantially given “the heirs” to keep up payments after his death until the conditions of the bond should have been complied with. The descent was broken by the deed, and' had they elected so to do, upon a satisfaction of the conditions of the bond by them, the “ heirs ” would have taken by purchase under provisions of the deed for a reconveyance and not by descent.
    Default on their part in making such payments after his death was a contingency which the grantor evidently had in contemplation, and upon the happening of which he intended. that the rights of the “heirs” as “heirs” should cease; as will be seen by reference to the clause of the deed, which provides specifically for the payment of the surplus proceeds to “ his executors and administrators ” the proper agency for the distribution of the personal estate.
    The grantor uses the word “heirs” in every other connection, where they might intervene, and if his intention had been that the “heirs” should have the benefit of this surplus in contradistinction to the personal representatives, he would not have omitted them in this last clause; the fact that the grantor’s use of the words “ heirs ” and “ administrators and executors” throughout the deed is aj>t and appropriate and according to their legal force and effect, shows that in this last clause, the omission of the former was premeditated, and that the grantor intended to draw the distinction between his real and personal representatives as to this surplus.
    The ground upon which the title of the heir rests is, that whatever is not disposed of remains to him (Craig~rs. Leslie, 3 Wheat., 584); no resulting trust can arise on the face of this deed for the benefit of the heir at law in the proceeds of sale.
    The case at bar is stronger than a case of mere contract or agreement, on the part of the ancestor, to sell at the option of another, where the legal fee is retained, and upon the death of the ancestor, passes to the heir.
    Lawes vs. Bennett, 1 Cox, 167, is a case of the latter: A. made a lease for seven years to B., agreeing that if B. was so minded he might purchase the inheritance within a limited time, for £3,000, and he would convey for that sum. A. dies, and by will gives all his real estate generally to E>., and all his personal estate to D. and E. equally within the time limited, but after the death of A., the assignee of B. , claimed from L., the benefit of the agreement, who, accordingly, convey to him, and the Court held that the £3,000 was part of the personal estate of A., and that E. was entitled to a moiety thereof.
    The case of “In re Underwood, 3 K. & J., 745, is precisely in point.” Loveday conveyed to Underwood, Ms heirs and assigns, certain freehold lands upon trusts, that is to say, if the sum of £350 should be paid to Underwood before a time stated, then in trust for “the said Loveday, Ms heirs or assigns ” and upon his or their request to reconvey to him or them; but in case default should be made, then upon trusts for sale; the trusts of the money arising from such sale were declared to be for the payment of the £350 and interest and costs, and subject thereto for “the said Loveday, his executors, administrators or assigns.” The Vice Chancellor in passing upon the question presented, says: “It appears that in the event of a sale, the surplus moneys arising from the sale are directed to be paid to “Loveday, his executors administrators or assigns,” and not to him, “his heirs or assigns.” The deed operates, therefore, to convert the property as between the real and personal representatives of Loveday; and that being so, I think it must be held to be something more than merely a security for money.”
    Lingen vs. Sowray, 1 P. Wins., 172, which was affirmed upon appeal, is also in point; there the grantor declared the trust to be for him, his executors and administrators, and it was held tantamount with his having declared that the property, should not go to his heirs.
    In Crabtree vs. Bramble, 3 Atk., 689, where the reservation was to the grantor, “ his heirs and assigns,” it was held that the same reasons existed to hold the interest to be in favor of the heirs, as there were in Lingen vs. Sowray, for holding in favor of the executor, and that this was sufficient to determine the question between the representatives of the personal estate and the heir.
    The distinction arising out of the use of terms of limita1 tion as to the devolution of property either on the heir or personal representative is also recognized in Williams vs. Jekyll, 2 Ves. Sr., 684.
    An additional reason for giving the deed the construction here contended for, if there be room for doubt, lies in the fact that the appellant widow was a party to the instrument, and united in the declaration of the trusts declared therein relating to the creation of the fund by sale, and to the disposition thereof. She is entitled to consideration as a party to the contract — she parted with a valuable thing— her inchoate right of dower; there was and is no privity betwen her and the heirs, who are now seeking to exclude her from all participation in the husband’s estate, and in the very fund created by the act of herself and husband.
    There is no reason to suppose that she intended to provide for such exclusion for the sole benefit and interest of said heirs in case of a sale; on the contrary, the declaration of the trusts for payment to the administrator in contradistinction to the heir may well be held to have been the consideration moving her to unite in the execution of the deed, and her equities for a performance of its conditions should be accordingly upheld.
    Messrs. Martin F. Morris and Frederick W. Jones, for the heirs.
   Mr. Justice Cox

delivered the opinion of the Court:

In 1880 Richard L. Thompson, being single and unmarried, executed a deed of trust to secure a debt. Afterwards he married; and after that, again, he executed a second deed of trust, in which his wife joined, for the purpose of releasing any right of dower she might have, to secure certain dues payable to the Home Building Association. Very shortly after that Mr. Thompson died intestate, leaving his widow surviving him and several collateral heirs, some of whom are adults, and some others infants. These adult heirs continued, for a time, to pay the dues to the building association and then concluded, in order to wind up the estate, to allow a sale under the deed of trust and allow the proceeds to be applied first to the payment of the dues to the building association; and, second, to pay the balance of general indebtedness which the personal estate was insufficient to pay. The trustee paid the surplus proceeds, amounting to $2,418, into the hands of the administrator of the deceased. This administrator filed a petition in the Orphans’ Court asking instructions as to the proper distribution of the funds. The widow petitioned to be made and considered a distributee, and the heirs claimed that the fund belonged to them as the proceeds of real estate which they were entitled to, subject to this deed of trust.

It is not made very clear on the face of the widow’s petition whether she claims this fund as proceeds of the real estate in which she had a dower interest, or as her pars rationabilis, as part of the personal estate. Unfortunately it is the settled law of this District that a widow is not dowable of an equity of redemption; she cannot, therefore, in this case claim as dowress; and if she can claim here at all, it must be for her share of the personal estate. The question, therefore, is whether this was personal estate. It is claimed that the deed of trust executed by the husband operated as an equitable conversion of this land into personal estate when it was sold, and that the widow was entitled to one-half of it, as widow. , .

I should remark, in the first instance, that the doctrine of equitable conversion is a doctrine purely of Courts of Equity. Those courts, in some cases, treat money as land, or land as money; but no Orphans’ Court has any such jurisdiction. The Orphans’ Court has no right to say, when land has descended to heirs, that some act of the testator, some deed or will, has equitably converted that estate into money, and then proceed to administer it as money; so that, if the widow was entitled to treat this as personal estate, her remedy would have been by filing a bill in equity in this Court.

But we will pass that question for the present and proceed to the merits of the case.

The deed of trust which was executed by Mr. Thompson was in the ordinary form, and does not convey the idea that his primary object was to convert his land into money. It is clearly an ordinary security for indebtedness to a building association. After executing that, the fee simple, subject to this deed, remained in him. He died intestate, and it necessarily desended to his heirs at law and became their property; and the natural conclusions would be that if it was sold under the deed of trust, it was sold as their property and the surplus proceeds would come back to them. The only reliance of the widow is the concluding words in which the trustees are directed to pay over any residue “ to said Richard L: Thompson, his executors, administrators, or assigns,” instead of, “ heirs, executors, etc.,” which is the usual form. It is also provided in the deed that “ Thompson, his heirs and assigns,” shall have the right to hold and occupy until some default or failure shall be made; so that if there should be no default or failure, and if the heirs should continue to pay the dues until the debt was extinguished, the property would be theirs absolutely. It also provides that in the event of any such failure or default made, either by himself or his heirs, then the trustee should sell. Now, this final direction in the deed to pay over the surplus is perfectly needless. The law supplies the duty of trustees under such circumstances. When the land is sold, in the mortgagor’s life, the surplus is payable to him, or if he should die before the day of payment to his executors or administrators; if, however, it is sold after his death, it is payable to his heirs. We all know that these expressions are often used inaccurately. If a man bequeathed personal estate to one and his heirs, nobody would pretend that the heirs would be entitled to it. So in case of a devise of land to one, his executors and administrators, nobody would pretend that his executors or administrators would be entitled to it.

The fair interpretation of these inaccurate and often inadvertent expressions would seem to be that they are intended to express just what the law would ordain. In this case, the surplus is directed to be paid to the grantor, his executors, administrators and assigns — which is correct if the sale is made in his life-time and he should die before receipt of the money. But the case of his death before the sale would make a different case, and is simply, as we think, not provided for in the deed, but is left to the operation of the law.

The property having become the property of the heirs by descent, they are entitled to the surplus proceeds of sales. It appears to us that that is perfectly clear law, and it was go ruled in Wright vs. Nose, 2 Sim. W Stu., 323.

■ Some cases have been cited on the part of the widow, as establishing a different rule; but they do not seem to us to do so.

Although reluctant to deprive a widow of a share in the estate of her husband, we are satisfied that the heirs are entitled to the surplus; and therefore the decree of the Orphans’ Court, distributing it according to that theory, must be affirmed.  