
    Paist’s Appeal. [Paist’s Estate.]
    A testator, after providing for the payment of his debts and funeral expenses, and making certain specific and pecuniary bequests, directed the balance of his estate, personal and real, to be divided between his seven children, their heirs and assigns, share and share alike, and appointed four of his sons executors, to whom he gave a power of sale in the following language: “ I hereby give them full power to sell my personal and real estate at public or private sale, as they shall think best, with full power to give deed or deeds in fee simple as fully as I could were I alive. I hereby give them five years after my death to sell and divide my estate as directed above.” Held, that the language of the will effected an equitable conversion of testator’s real estate from the time of his death.
    Pee Curiam. — There was such a blending of the real and personal estate by the testator in his will as clearly to show that he intended to create a fund out of both real and personal estate and to bequeath the fund as money; and perhaps there was a conversion by reason of an absolute necessity to sell in order to execute the tvill.
    
    Feb. 13, 1889.
    Appeal, No. 340, Jan. T. 1889, of B. F. Paist and Edward Paist, to review a decree of O. C. Chester Co., dismissing their exceptions to the report of auditor, appointed to distribute the balance appearing by the account of the executors of Phineas Paist, deceased. Green and Clark, JJ., absent.
    The facts as found by the auditor, Wm. T. Barber, Esq., were substantially as follows:
    Phineas Paist died June 6, 1883, seized of three tracts of land, of unequal value, besides personal property, and leaving a will, wherein, after providing for the payment of his debts and funeral expenses, and making certain specific and pecuniary bequests, he proceeded as follows: “ Item 4. I direct that the balance of my estate, personal and real, be divided between my seven children, their heirs and assigns, share and share alike.” Ite'm 5, after appointing his four sons his executors, concluded as follows: “ I hereby give them full power to sell my personal and real estate, at public or private sale, as they shall think best, with full power to give deed or deeds in fee simple as fully as I could were I alive. I hereby give them five years after my death to sell and divide my estate as directed above.”
    The will was dated J an. 22, 1883, and was proven on June 19, 1883. After testator’s death, a judgment was entered against George Paist, one of said children, and, under a writ of fi. fa. issued thereon, all of his right, title, and estate in two of said tracts, were sold by the sheriff to B. Franklin Paist and Edward Paist, the appellants, and a deed was made to them therefor, on Jan. 31, 1884. The third tract had previously been sold by the executors, under the direction of the court, for the payment of testator’s debts. On Jan. 24, 1884, George Paist made an assignment of his interest in his father’s estate to S. M. Hamilton & Co., the appellees, as collateral security for a debt he owed them. The executors of Phineas Paist, pursuant to power given in the will, sold the two tracts of land, described in the sheriff’s deed, and made deeds therefor on April 1, 1888. They then filed their account, charging themselves with the proceeds of said sales. The fund for distribution before the auditor was wholly the proceeds from said two tracts of land.
    Before the auditor, B. Franklin Paist and Edward Paist claimed George Paist’s interest in the proceeds, by virtue of the sheriff’s sale. S. M. Hamilton & Oo. claimed the same, after the payment of an attachment which was prior to their assignment, by virtue of said assignment, on the ground that, under said will, there was an equitable conversion of said lands into money from the death of the testator.
    The auditor, after stating the facts, proceeded as follows :
    “ The single question to be determined is, whether the language of the testator’s will worked an equitable conversion of his real estate from the time of his death. If so, the share of George Paist in the fund for distribution, being personal property, must be appropriated first to the payment of the attachment execution, now marked to the use of Edward Paist and B. Franklin Paist, and, secondly, to the payment of the claim of S. M. Hamilton & Oo., under the assignment made by George Paist to them. If, on the other hand, there is no conversion, and the testator’s children took as devisees, the judgment entered on June 14, 1883, for $2,076.96, became a lien upon George Paist’s interest in the real estate devised; the purchasers of that interest at sheriff’s sale became the absolute owners thereof, and the share of George Paist in this fund must be awarded entirely to the purchasers. In this event, Messrs. S. M. Hamilton & Go. would have no standing before the auditor, and would be entitled to no portion of the balance for distribution.
    “ Conversion is a question of intention. The general rule undoubtedly is, that a bare power to sell, given to executors by will, does not operate- as a conversion; that, in order to effect a conversion by will, the direction to convert must be positive and explicit, and that unless there be an imperative direction to sell, irrespective of contingencies, and independent of discretion, conversion will not take place until the sale is actually made. Anewalt’s Appeal, 42 Pa. 414; Chew v. Nicklin, 45 Pa. 84; Peterson’s Appeal, 88 Pa. 403; Jones v. Caldwell, 97 Pa. 45.
    “ In the will of Phineas Paist, a discretionary power is given to the executors to sell the testator’s real estate, but there is no positive and explicit direction to do so. This absence of a positive direction to sell would be decisive of the present case, were it not for the application of another principle of law which has been invoked by the counsel for S. M. Hamilton & Co., and which is, that a conversion may take place, notwithstanding the fact that there is in the will no positive direction to sell, but merely a discretionary power, where there is in the will such a blending of real and personal estate, as clearly to show that the testator intended to create a fund out of both real and personal estate, and to bequeath the said fund as money. There is ample authority in recent decisions for this position.
    “ In Dnndas’s Appeal, 64 Pa. 325, the testator, after making a number of bequests and devises, ordered and directed that all the remainder of his estate, real, personal and mixed, be divided into forty equal parts, which he gave and devised to certain of his relatives. This disposition of his property he followed by conferring upon his executors full power to sell his real estate. It was said by Judge Agnew, who delivered the opinion of the court, that the language of the will operated to effect a conversion of the realty into personalty, so that the interest of the heirs was not liable to lien, or sale by the sheriff; that the descent was broken, and the estate vested in the executors, leaving to the legatees but an interest in the proceeds. These expressions of the learned Judge are dicta merely, as the case did not raise the question of conversion.
    “ In Page’s Estate, 75 Pa. 95, the court say : ‘We agree that a conversion may arise, without express terms, when it is clear that a testator meant to create a fnnd raised out of both real and personal estate, and to bequeath the fund as money alone.’
    “In Perot’s Appeal, 102 Pa. 256, the language of the court is: ‘ The blending of real and personal estate by a testator, in his will, is not of much significance unless it clearly appears that he intended, thereby, to create a fund raised out of both real and personal estate, and to bequeath said fund as money. Where such a purpose is expressed, and a power of sale is given to carry it into effect, there is some room for holding that a conversion was intended.’ ”
    After quoting from Hunt’s & Lehman’s Appeals, 105 Pa. 141, the auditor proceeded to discuss the case in hand, as follows :
    “ The words ‘ as directed above,’ in item 5th, while they cannot apply to the sale of his real estate, for the reason that he had nowhere directed such sale, do refer to the word ‘divide’; and, inasmuch as the testator had before directed the balance of his estate, personal and real, to be divided, his evident intention was that the executors should make the division. The words, ‘ I hereby give them fiyé years after my death to sell and divide,’ while , not limiting the exercise of the power of sale to five years, limit the discretion of tbe executors, and require the latter to sell in order to effect the division directed by the testator. In the meantime, the executors became accountable for the real estate, the title to which was taken from the children and vested in them. They rightly appreciated their responsibilities, assumed the control of the several tracts of land, belonging to the estate, and have charged themselves with the rents and profits in their account.
    “ The language of the will, in the judgment of the auditor, effects an equitable conversion of the testator’s real estate from the time of his death. There is a full power conferred upon the executors, to sell the personal and real estate, accompanied by a positive direction to them, to divide the balance of the estate, personal and real, among seven of the children, in equal shares. This created such a blending of the real and personal estate, by the testator, in his will, as clearly to evince his intention to create a fund out of both real and personal estate, and to bequeath the same as money.”
    The auditor awarded the fund in accordance with his findings. Exceptions were filed to the auditor’s report, by the appellants, averring that the auditor erred, 1, in holding that the will effected an equitable conversion; 2, in awarding any part of George Paist’s share to S. M. Hamilton & Go.; 3, in not awarding the whole of it to Edward Paist and B. Eranklin Paist; 4, in finding that the sheriff’s deed did not convey all the interest of George Paist to appellants.
    The court dismissed the exceptions and confirmed the report, and made an order to pay out.
    
      The assignments of error specified the action of the court below, 1, in dismissing the exceptions to the auditor’s report, quoting them; and, 2, in confirming the report.
    
      R. T. Cornwell and Alfred P. Reid, for appellants.
    A direction to the executors to make a division of the estate, real and personal, is not such a blending of the real and personal estate as to work a conversion by implication. Perot’s Ap., 102 Pa. 235.
    A power of sale, without a positive direction to sell, does not work a conversion. Gordon’s Ap., 18 W. N. C. 23; Chew v. Nicklin, 45 Pa. 84.
    Here the title was in the devisees until the power of sale was ■executed by the executor, and the interest, right .of possession and perception of profits were in the devisees, between the death of the testator and the sale. In such case, there is no conversion. Drayton’s Ap., 61 Pa. 172. See, also, Blight v. Wright, 1 Phila. 549; Myers’s Est., 9 Phila. 310.
    There was no necessity to sell in order to execute this will. The children could have taken the land and divided it, or sold it themselves as owners. There was no trust in their favor in the executors as to the land. There was no duty resting upon the executors to sell, and it is the duty which creates the equitable change. Thornton v. Hawley, 10 Ves. 129; Taylor v. Taylor, 3 De. G., M. & G. 190. Trusts are always imperative; mere powers are not. Miller v. Meetch, 8 Pa. 417.
    
      The blending of real and personal estate by a testator, in his will, is not of much significance unless it clearly appears, that he intended thereby to create a fund raised out of both real and personal estate, and to bequeath said fund as money. Where such a purpose is expressed and a power of sale is given to carry it into effect, there is some room for holding, that a conversion was intended. Perot’s Ap., 102 Pa. 256.
    But the limitations or expressions, used by the testator, must not only be such as are perfectly compatible with his estate as converted. They must positively and wholly rebut any and every other presumption. It is on the absolute intention of the testator to treat his land as money, that the whole doctrine of equitable conversion is based. Henry v. McCloskey, 9 Watts, 145.
    Mr. Paist does not bequeath the fund, after its conversion, as-money. He simply gives his executors power to sell and divide his estate, as directed above; that is, amongst those to whom he had already given it as land. The executors could have sold and divided the personal estate amongst the children, and the children could have taken the land as devisees, and carried out the will as well as by a sale of the land.
    To operate as an immediate conversion from the testator’s death, it must appear in terms that he intended the property to be sold absolutely and at all events. Arnold v. Gilbert, 3 Sanford Ch. 533, 556. See, also, Anewalt’s Ap., 42 Pa. 414.
    Dundas’s Ap., and Page’s Est., relied upon by the auditor, do not support his conclusions. See the discussion of these cases in Perot’s Ap., supra.
    
      T. W. Pierce, for appellees.
    A sale to make division, is a conversion. Hunt & Lehman’s Ap., 105 Pa. 141; Jones v. Caldwell, 97 Pa. 45; Page’s Est., 75 Pa. 95.
    The natural and reasonable intendment of this will is, that the realty shall be sold and the proceeds be equally divided among the legatees. Roland v. Miller, 100 Pa. 50.
    The subject of the gift is neither personal property nor land, but a balance, and the word heirs used therein, is not a word of limitation upon a'devise in fee, but a mere indication in an untechnical form of the measure of interest to be taken in the subject of the gift, by the legatees, namely, an absolute interest. This is clear, because, if used in connection with the balance in respect to the land, it is also used in connection with that balance as contributed to by personalty.
    The power to sell, for the purpose of distributing the estate according to the directions of the will, is the creation of such an interest in the executors as breaks the descent of the land. The very object of this will is that it might not be necessary for those who were interested in the balance of his estate to have recourse to partition to get their several interests out of the land. Hutchison’s Ap., 82 Pa. 513.
    
      The testator must have intended a conversion, even in the event of a division of the estate among the heirs by agreement. To have divided them, would have required either a sale between themselves or partition according to law. The latter would have necessarily involved an appraisement and sale, and hence a conversion. Jones v. Caldwell, 97 Pa. 45; Pyle’s Ap., 102 Pa. 317; Dundas’s Ap., 64 Pa. 330.
    Where, by the terms of a will, one of the heirs is permitted to take real estate at an appraisement, it does not change the effect of a power to sell and to divide the proceeds. Laird’s Ap., 85 Pa. 339 ; Miller v. Com., 111 Pa. 321.
    Within the five years, the executors could not be compelled to make the sale to carry out the will, but after that time the exercise of the power could be compelled on the application of the legatees. Peterson’s Ap., 88 Pa. 403; Parkinson’s Ap., 32 Pa. 455; Brown and Sterrett’s Ap., 27 Pa. 62.
    The entire interest in the land vested in the executors for the purpose of making sale and division. The children took no interest in the land, which would be bound by their judgments. Allison v. Kurtz, 2 Watts, 187; Morrow v. Brenizer, 2 Rawle, 185; Allison v. Wilson, 13 S. & R. 330.
    The intention of the testator could not be effected without the sale. As the usual time for settling estates is one year, the testator in allowing the five year’s was actuated no doubt by the desire of giving ample time to carry out his purpose, and to prevent a sacrifice of the property by forcing it into market. It does not surely afford to the executors a discretion as to the sale, nor modify the intention. Brolasky v. Gally, 51 Pa. 512.
    Feb. 25, 1889.
   Per Curiam,

In Hunt & Lehman’s Appeal, 105 Pa. 128, the rule in regard to equitable conversions of real estate, was stated as follows: “ In order to work a conversion, there must be either, 1st, a positive direction to sell; or, 2d, an absolute necessity to sell, in order to execute the will; or, 3d,, such a blending of real and personal estate by the testator in his will as clearly to show that he intended to create a fund out of both real and personal estate, and to bequeath the said fund as money.” This case comes within the third, and perhaps the second, of the above propositions. We think the will of the testator clearly shows an intent to blend his real and personal estate together and to distribute it as money. To enable his executors to do this, he gives them a power of sale, and adds thereto these significant words : “ I hereby give them five years after my death to sell and divide my estate as directed above.” We are of opinion that when he gave his executors five years after his death to sell his real estate, he meant that they should sell within five years.

The decree is affirmed and the appeal dismissed at the costs of the appellants. W. T. B.  