
    John Parker et al., Executors, etc., App’lts, v. Maria Linden, Resp’t; Mark Lythgoe et al., App’lts.
    
    
      (Court of Appeals,
    
    
      Filed March 5, 1889.)
    
    1. Wile— Construction of—Conversion of realty into personalty— Right of widow.
    The testator, by the first clause of his will, gave his wife Maria Linden one dollar, and after providing for the' improvement of his burial place and giving some small bequests, gave to his two half brothers and his half sister "all the rest, residue and remainder of my estate, both real and personal, of what nature or kind soever, to be received by them, share and share alike, or in equal parts.” Fifth, I order and direct my executors * * * to take possession of my personal estate * * * not hereinbefore granted or bequeathed, and to sell the same, * * * and to take’possession of my real estate, and collect the rents thereof, and the surplus money arising from such rents after paying expenses, and the money arising from the sale of my personal estate * * * (to be used) “ to pay all bequests herein given and work ordered to be done, then all the money given or bequeathed to be paid as hereinbefore directed; sixth,, I order, after all my just debts and bequests are fully paid and discharged, that my real estate be sold, * * * the proceeds of the sale * * * to be invested * * * for the use and benefit of my two half brothers and half sister, as before directed.” Certain property named he “ directed not to be sold during the time the dower right of Mary Ann Graham is a lien on said property.” Meld, that as to the widow there was no conversion of the realty, and that her rights were not increased by the provisions of the will in that respect. She is entitled to her dower in the real estate of which the testator died seized, and if he died intestate as to any portion of his personal estate, she is entitled to a distributive share of that portion. She neither gains or loses through the provisions of the will. Her rights are independent of them.
    2. Same—When heirs entitled to realty—Effect of notional conversion.
    If the sale of the land is unnecessary for any purpose directed by the will the heirs are entitled to it in its present form, and “ the notional conversion ” will subsist only until the cestui que trust, who is competent to elect, intimates his intention to take the property in its original character.
    The action was brought by the executors of James Linden, to obtain a judicial construction of his will, a sale of the real estate of which he died seized, a declaration that the share of William Lego lapsed, and for other incidental relief. The will, so far as is material to any question presented by either party, is as follows:
    
      First. The testator gives to Maria Linden one dollar.
    
      Second. Makes provision for the improvement of his burial place.
    
      Third. Declares some small bequests.
    The fourth clause is in these words: “I give and bequeath to my half-brothers, William Lego and Mark Lego, and my half-sister, Jane Lego, now or late of Liverpool, England, all the rest, residue and remainder of my estate, both real and personal, of what nature or kind soever, to be received by them, share and share alike, or in equal parts.”'
    
      Fifth. I order and direct my executors, as soon after my demise as possible, to take possession of my personal estate, of whatever name or kind, and not hereinbefore granted or bequeathed, and to sell the same at public vendue, and to take possession of my real estate and collect • the rents thereof, and the surplus money arising from such rents after paying expenses, and the money arising from the sale of my personal estate, to be deposited by my executors in the Greenwich Bank for Savings, at present located at No. Jo Sixth avenue in the city of New York, to remain in said bank until there shall be money sufficient, with any money I may have in said bank, together with any money I may have in any other bank or at any other place, to pay all bequeaths herein given and work ordered to be done, then all the money given or bequeathed to be paid as herein-before directed.
    
      
      Sixth. I order, after all my just debts and bequeaths are' fully paid and discharged, that my real estate be sold at public auction, under the direction of a referee appointed by the order of the supreme court; that said referee execute to the purchaser or purchasers a deed of the premises sold; the proceeds of the sale, after deducting his fees and expenses of sale, said referee shall deposit in the supreme court to be invested under the direction of said court, in the same manner as money belonging to non-residents, according to the rules and practice of the supreme court in such cases, for the use and benefit of William, Mark and Jane Lego, as before directed, subject to the further order of the court.
    The property situate on the southeasterly corner of Eighth avenue and Thirty-fifth street I direct not to be sold during the time the dower right of Mary Ann Graham is a lien on said property.
    The widow and children answered. Upon trial at special term it was found :
    “ VII. That the testator’s half-brother, William Lego, otherwise known as William Lythgoe, one of the legatees named in the will, died in September, 1880, leaving him surviving his four children, Charles, Martha, and Francis Lythgoe, and Mary Ellen Kendrick, defendants in this action.
    “ VIII. That the testator’s half-sister, Jane Lego, otherwise known as Jane Smith, went to Australia about 1837, purposing to make her home there, and that she after-wards went to New Zealand, but that her relatives have not heard from her for upwards of forty years, and that reasonable inquiry has been made at her last known address to ascertain if she be still living.
    “ IX. That all of the testator’s heirs and next of kin are non-resident aliens.
    “X. That dower out of the real property of the testator has been assigned to his widow, the defendant, Maria Linden.
    “XI. That the testator gave to this court a power to appoint a referee to sell his real estate and to pay over the proceeds according to the direction of this court.”
    And as conclusions of law:
    “III. That a legal presumption arises that Jane Lego, alias Jane Smith, testator’s half-sister, died before the testator.
    “ IV. That by reason of the death of William Lego, alias William Lythgoe, and of Jane Lego, alias Jane Smith before that of the testator, the legacies to them lapsed and as to their portions the testator died intestate.
    “V. That the testator’s direction that all of his real estate be sold and converted into money, produces an equitable conversion of his real estate into personalty, and that it must be distributed as personal property.
    “VI. That the dower interest of the widow, Maria Linden, forms no part of the estate to be distributed under the will.
    “VII. That besides said dower interest, the widow, Maria Linden, is entitled to one-half of the remainder after the payment of Mark Lego’s (Mark Lythgoe’s) share, and to $2,000 besides.
    “VIII. That the testator gave no power of sale to the executors, but did give to this court a power to appoint a referee to sell the real estate.
    “IX. That the share or portion of the estate to which Jane Lego’s (alias Jane Smith’s) children would be entitled if she left any her surviving, should be paid into court to await further inquiry as to whether or not she died leaving issue.”
    The trial judge appointed a referee to sell the real estate and directed that the proceeds be brought into court to await its further order.
    From the judgment entered upon these findings, an appeal was taken to the supreme court, general term, first department, by Mark Lythgoe, Martha Lythgoe and Mary E. Kendrick, and by the plaintiffs from so much of it as adjudges that as to the gold watch and $500 mentioned in the third subdivision of the will, the testator died intestate. And, also, so much of said judgment as adjudges a conversion of the real estate of the testator into personal so far as the interests of Maria Linden were involved, and that Maria Linden is entitled to a share in the proceeds of the sale of the real estate of which said James Linden, died, seized.
    Both appeals failed, and from the judgment of affirmance the same parties Lythgoe appeal to this court, and the plaintiffs appeal from so much of it as affirmed that part of the judgment of the special term that awarded to Maria Linden, in addition to her dower and her distributive Share of the personal estate left by James Linden, one-half or a portion of the proceeds of real estate directed to be sold under the will of James Linden, deceased.
    
      Henry Brewster, for pl’ffs-app’lts; B. Vanderhoven, for Charles and Martha Lythgoe and Mary Kendrick, def’tsapp’lts; Mr. Gould, for Mark Lythgoe, def’t-app’lt; Mr. Peck, for Maria Linden, resp’t.
    
      
       Reversing 9 N. Y. State Rep., 305.
    
   Danforth, J.

—The important question is whether the direction for conversion is by the terms of the will absolute and imperative, so as to be complete to all intents and purposes, or whether the conversion directed is for the purposes of the will only. If the latter, then if those purposes fail or do not exhaust the proceeds, the property unapplied, whether the estate has been actually sold or not, will devolve according to its original character. Gourley v. Campbell, 66 N. Y., 169. Here the controversy is between Maria Linden, the widow respondent, and the residuary legatees, and according to the construction given, the first gains and the other class loses.

Was there a conversion so far as the widow was concerned? The residuary legatees are the next of kin and heirs at law of the testator, and he directed the proceeds of the sale of his real estate to be given to them, and as nónxesident aliens the doctrine of conversion would if necessary apply in their favor. Lewin on Trusts (7th ed.), 812. He may be deemed to have known it and framed his will for their benefit. This was the view of the general term. That court regarded it as clear that ’“the testator intended that his estate should be- converted into personalty in order that his alien brother and sister should take.” It was in fact unnecessary to accomplish that object; as to all others except the state they could take and hold as heirs or devisees. Chap. 38, Laws of 1875. There is, however, nothing to indicate that his purpose was to give the widow more "than the law entitled her to demand. It is plain he wished her to get no part of his estate, and indeed cut her off with one dollar, and directed his executors to devote if necessary the rest of his property to resisting any attempt she might make to get more.

Of course, if his language requires an out and out conversion, this exclusion of the widow is of no moment; but it is of some aid in getting at his intent. We are of opinion that as to the widow there was no conversion of the realty, and that her rights are not increased by the provisions of the will in that respect. She is entitled to her dower in the real estate of which the testator died seized, and if he died intestate as to any portion of his personal estate, she is entitled to a distributive share of that portion. Lefevre v. Lefevre, 59 N. Y., 434.

She neither gains nor loses through the provisions of the will. Her rights are independent of them.

The testator devised his real estate to his half-brother and half-sister. The will contains no words from which an intimation can be gathered that he intended to impress a new ■character on that estate, or that either the power of sale or its exercise should change the direction of this bounty, or alter the essential nature of the property so characterized. No wish of the testator is expressed which requires a sale «except for some purpose of the will itself. If not required for that purpose a conversion will not be presumed. Chamberlain v. Taylor, 105 N. Y., 185; 7 N. Y. State Rep., 517.

If Linden had left no will, the widow’s rights in the real estate would have been limited by her dower interest, and. there is nothing in that instrument, or the circumstances of the case, which can increase her share. If a sale is necessary, the residue of the proceeds of the land will belong to the heirs. If unnecessary for any purpose directed by the will, they are entitled to it in its present form, and a sale against their objection should not be decreed. They have a right to that, and “the notional conversion” will subsist only until the cestui que trust, who is competent to elect, intimates his intention to take the property in its original character. Seeley v. Jago, 1 P. Wms., 389.

The appeal must prevail, and the judgment of the general and special terms be reversed and new trial granted, with costs to all parties to be paid out of the fund.

All concur except Earl, J., not voting.

John Parker et al., Executors, etc., App’lts, v. Maria Linden, Resp’t; Mark Lythgoe et al., App’lts.

Danforth, J.

—We are furnished with a record showing a separate appeal by Martha Lythgoe from the same judgment, but differing in no other respect from the case just considered, and to which, as one of several appellants, she was a party.

The appeal should be dismissed as unnecessary, without costs to either party.

All concur except Earl, J., not voting.  