#### Louis Liveright, Individually and as Administrator, etc., of Minnie H. Liveright, Deceased, Plaintiff, v. Edwin Sternberger and Pauline Sternberger, as Executors, etc., of Simon Sternberger, Deceased, and Others, Defendants.

First Department,

March 5, 1909.

Beal property — equitable conversion — will construed — when conversion takes place at time of sale.

In general an equitable conversion of real property when it is converted at all is deemed to have taken place at the death of a testator. Such conversion, however, may take place-upon the happening of a designated event, or at some futuré time, if such be the intention.

Thus, where a testator placed his lands in trust for the life of his widow, certain portions thereof not to be sold- without her consent, but the other portions to be sold in the discretion of the trustees, with remainders over to his children at the life tenant’s death, subject to deductions for advancements made to the remaindermen,-there was no conversion of the lands into personalty at the testator’s death. The conversion was postponed until the death of the widow unless the trustees sold sooner under the discretionary power.

Hence, a husband of one of the remandermen who under the laws of Pennsylvania was entitled to her personal property absolutely when she died intestate without descendants, is entitled to take only that portion of the estate coming to his wife which, was actually converted into personalty before her death. He takes no portion of the real property not actually sold.

Submission of a controversy -upon an agreed statement of facts, pursuant to section 1219 of the Code of Civil Procedure.

*Daniel P.*Hays, for the plaintiff.

*Clifford*Seasongood, for the defendants.

Houghton, J.:

In 1895 Simon Sternberger died leaving a widow and eight children. His estate consisted principally of various parcels of real property. The specific and money legacies given by his will, together with the ordinary expenses of administration, exhausted the personalty. His town residence in the city of New York and his country residence at Long Branch he gave to his executors in trust to lease the same and pay the rents to his wife duringher life, *14with the privilege, however* on her part of occupying them if she should so choose, and prohibiting their sale except upon, her consent, evidenced by her joining in deeds of' conveyance, If either or both should be sold the proceeds were to be invested and the income paid to her.

All the rest, residue and remainder of liis estate he gave to his executors in trust “to lease the real .estate, to invest and keep' invested the personal estate and the proceeds'of any sale of real estate, to collect and receive the rents,; interest and income of the real and personal estate,” and to pay to his wife from such rents, •interest aiid income a yearly annuity of $6,000, the balance to liis children in certain proportions.

By the 13th clause of his will, upon the death of his wife, lie gave, devised and bequeathed all of the property held in trust to his children and their issue,, share and share alike. The will further provided, however, that because of certain advancements made by the testator to various of his children during liis lifetime such advancements should be added to his estate, and upon division the advancement made to any child should be deducted from his share. . The precise language of the will respecting the ultimate division is as follows: “ Having heretofore advanced to my children hereinafter named various sums,, which sums respectively amount to the sums mentioned after each of their names, viz., (name of child and sum advanced), which statement of advancement is to be taken and deemed conclusive; and desiring that the said sums shall be deemed and taken as advancements to the said children respectively, it is my will and I do hereby direct that for the purpose of making a just distribution of the property devised and bequeathed by me in and by the thirteenth clause of this my will unto my children (or their issue aforesaid) and for no other purpose, the said sums, without interest, shall be reckoned as part of the property devised and bequeathed by the said thirteenth clause hereof, and I direct that from the respective shares of principal devised and bequeathed to each by the thirteenth clause of this my will to which my said sons (enumerating them) or their said issue will be entitled, there shall be charged and deducted, without interest, the said amounts' as aforesaid advanced or paid to my said, sons and daughter respectively.” Then follows direction as to disposition of the surplus income left *15over after the annuity to the wife, concerning which the advancements should be taken into consideration.

Three executors were named and the testator authorized and empowered them or the survivors, whether acting as executors or trustees, at any time, in their discretion, to sell all or any part of Ms real estate at public or private sale, free and clear of any charge thereon under his will.

After the death of the testator his son, Clarence S. Sternberger, died, leaving a last will and testament" by which he" devised and bequeathed one-third of his interest in his father’s estate to his sister, Minnie II., who afterwards married the plaintiff, Louis Live-right, and became a resident of the State of Pennsylvania, and died intestate and without child or descendant, leaving her surviving her husband, this plaintiff, and her mother and brothers and sisters, defendants herein. Between the death of the testator and the death of the daughter Minnie, the executors had sold two parcels of real property and realized therefrom, in the aggregate $68,750.

By the laws of the State of Pennsylvania when a married woman possessed of personal property shall die intestate without children or descendants, the husband is entitled to such-personal estate absolutely.

The plaintiff as such surviving husband and as administrator of his deceased wife, claims that all of the real property of which Simon Sternberger died seized was on such testator’s death from necessity because of the provisions of the will, converted into personalty, and that, therefore, the full share of his wife in her father’s, estate was personal property which passed to him upon her dying intestate and without children or descendants. The defendants insist that under the provisions of the will the real property was not from necessity converted into personalty at once on the testator’s death, but was converted into personalty so far- only and at such times only as the executors and trustees should exercise their discretion to sell any part of it. They concede that the proceeds of real property which had been sold before the death of the daughter Minnie, amounting to $68,750, became personalty, and that her share thereof belongs to the plaintiff, but they maintain that all unsold parcels retained their character of realty and that, therefore, plaintiff as surviving husband has no interest in them or in the proceeds realized from any future sale.

*16There are no direct words in the will converting the real property into personalty, nor any absolute direction to the; trustees to sell and divide the proceeds. Whatever conversion there may, be arises from necessity because of the complicated provisions respecting a final distribution of the estate upon the death of the widow. There is an absolute prohibition against selling the two parcels directed to be held for the benefit of the widow, except üpoh her consent.

If the real property be deemed to be converted into personalty before actual sale-or before the death of the widow, these two parcels must' be excluded from the operation of Such conversion and only the remaining parcels be deemed to have been converted.

The general rule, is that if real estate be converted into personalty at all it shall he deemed to be so converted at the death of the testator. If, however, it be the intention of the testator, such conversion may take place upon the happening of a designated event, or at some future time. *(Underwood*v. Curtis, 127 N. Y. 523; *Matter of*Hammond, 74 App. Div. 547.) The testator gave no imperative direction to his executors to sell the real estate but only authorized them to do. so in their discretion. The sale of two important parcels was expressly forbidden to be made without the consent .of the widow.. The testator- apparently saw no necessity for a sale until his widow should die. It might be desirable during the widow’s lifetime to sell certain parcels or all of them, and if his executors thought it wise -they were given the privilege of so doing. On the death of the widow final distribution Was to be made.. His estate was directed to be augmented by adding thereto the amount of advancements made to his children as he by liis will stated them to be. Having added these advancements, equal division was to be made— the child to whom nothing had been advanced to geta full share and the one to whom advancement had been made a like amount less such advancement.

Gathering' the intention of the testator'as best we may, we are of the opinion that it was not his intent that his real property should be converted into personalty immediately upon his death, but rather that it should be postponed until the death of the Widow, unless the executors should sooner sell the same under the power which he gave them. It is not absolutely necessary to sell for the purpose of *17distribution until the death of the widow, and, therefore, conversion from necessity to carry out the provisions of the will does not arise until that time.

These conclusions lead to a direction of judgment in favor of plaintiff only for the share of Minnie H., his deceased wife, in the $68,750, the proceeds from sale of real property sold before her death, and to a holding that plaintiff is not entitled to any interest in the remaining parcels of real property, and judgment is directed accordingly, without costs.

Ingraham, McLaughlin, Clarke and Scott, JJ., concurred.

Judgment ordered for plaintiff to the extent stated in opinion, without costs. Settle order on notice.