The opinion of the court was delivered, April 21st 1862, by
Thompson, J.
Conversion of property from one species to another, by a legal rule or principle, is a familiar doctrine. The usual difficulty is generally to be found in the instrument designed to effect the object. The following, taken from the books, may be received, in the aggregate, as a full statement of every requirement under the doctrine: “To establish a conversion, the will must direct it absolutely or out and out, irrespective of all contingencies.” “ The direction to convert must be positive and explicit, and the will, if it be by will, or the deed, if it be by contract, must decisively fix upon the land the quality of money.” “It must be an imperative direction to sell.” Blight v. The Bank, 10 Barr 131; Nagle’s Appeal, 1 Harris 260; Stoner v. Zimmerman, 9 Id. 894; Henry v. McClosky, 9 Id. 145; Boshart v. Evans, 5 Wh. 151, and Hoke v. Leaman, 8 S. & R. 248. The careful and diligent research of the appellees’ counsel have furnished many other authorities, English and American, to the same effect. Indeed, the doctrine is not controverted in argument by the appellant’s counsel.
The cases cited above, also furnish instances of the attempted application of the doctrine under contingent directions, so like the present that they almost demonstrate the accuracy of the decree of the court below, to which may be added the case of Carlin v. May, 3 Atk.; Walter v. Maunde, 19 Vesey 424, and Whitdale v. Partridge, 8 Id. 388.
The sale directed here depended upon several contingencies: in such case, the rule is, that no conversion results from the law and does not take place until it is actually made. The conversion here was made to depend on the acceptance or non-acceptance of the land on terms by Owen Robert Dech, after he should arrive at age, and that again depended on a preliminary agreement of the heirs to certain appraisers, to make a valuation of the farm; then upon an agreement by the appraisers themselves, as to the value. Now if Owen Robert had died before this was all done, and before he had exercised his election, and refused to take the farm at the appraisement, the directions for conversion would not operate. No one can see in this that positive direction to sell, irrespective of contingencies which the law requires to change the character of the property before actual conversion. It was not in law converted, then, at the death of Mrs. Anewalt, nor had the time arrived, on the happening of which it was to be determined whether it would or would not be converted. The nature of her interest remained as it had passed to her from her father, viz., as land. It was not personalty, for the reasons given. It was not in abeyance; it was therefore-realty. From her, therefore, it passed to her issue as land, subject to a life estate in it to the husband as tenant by the curtesy. This was what was determined below, and is correct.
There was an effort to establish the position that the land, by the devise, became Owen Robert’s absolutely, and the shares of her brothers and sisters were legacies charged upon it. But this was manifestly not the case; they would only become so on acceptance by him: till then these shares were -land. When acceptance took place, and not till then, they would become legacies ; this was a mode of partition or distribution by the testator; because, if it did not take place in this way, actual conversion was provided for, and equal distribution among all the heirs directed. But I need not pursue this matter further.
I may remark in conclusion, that the land did not pass to the executors, on the death of the testator, for the purposes of sale. If it had, a very different result would have followed. Their power of sale was to be resorted to only on a. contingency not determinable for some years, and dependent on the action of the owners in fee of the land. If that extended in one way, the division among his children, intended by the testator, would be accomplished; if in another- way, then the executors were to act to effectuate the object in another way. It is, to my mind, very clear that partition or equal distribution was the design of the testator. At the death of Mrs. Anewalt, nothing to change the interest of the heirs, in the whole, had occurred, and this fixes the rights of her child and her husband.
Decree of the Orphans’ Court is affirmed, at the costs of the appellant.