State v. Hirons — 6 Del. 252

Majority

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The State, for the use of Charles H. B. Day and Mary his wife, late Mary Warren, v. William Hirons.

Headnote

Although the act concerning the real estates of intestates provides that on the appraisement and confirmation hy the Orphans’ Court of the real estate of. intestates, the value of the lands, according to the said ap- - praisement, shall he substituted in the place of said lands, there is no conversion of the realt;r into personalty until acceptance at "the appraised value and assignment by the Court, or sale of the same by the order and confirmation of the Court, hy which alone the legal estate of the heirs in the real estate is divested and transferred, and converted into its equivalent in money, to be secured hy the recognizance

This case came up on a scire facias on a recognizance taken in the Orphans’ Court for Kent County, upon a case stated in the Superior Court, and on a question of law reserved for a hearing before all the judges in kank.

The case stated was as follows: Samuel Warren, late of Murderkiln Hundred, Kent County, died intestate in 1824, seized in fee of two several tracts of land situate in said Hundred, and. left 'to survive him a widow and four children—Elizabeth, John, Charles, and Mary Warren—as his only heirs-at-law. Of these the two first named, Elizabeth and John, were the issue of a former wife, and Charles and Mary were the issue of his last wife. After the death of his widow, the said William Hirons, who had intermarried

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with the said daughter Elizabeth, presented his petition to the Orphans’ Court of said county for partition of said lands, and commissioners were appointed pursuant to the statute in such cases made and provided, to divide the same, who, at the ensuing March Term, 1831, of said court, made return that the lands would not divide into the primary shares directed, without detriment,, &c., but would divide into two parts, into which they had divided them, one of which allotments they had appraised at $1465, and the other at $1400, which return was thereupon approved and confirmed by the Court, and the same day the first-mentioned allotment was accepted by and assigned to the said William Hirons, and he entered into recognizance to pay the other parties entitled their respective shares of the appraised value thereof, and which have since been paid and satisfied by him; the said John Warren, the brother of the whole blood of the said Elizabeth, the wife of the said William Hirons, having in the meantime died intestate and without issue, leaving his said sistér of .the whole blood, the said Elizabeth Hirons, and his brother and sister of the half blood, the said Charles and Mary Warren, to survive him as his heirs-at-law; having before his death, however, attained the age of twenty-one years, and' become entitled to accept the other allotment of the land at the appraised value thereof. At the March Term, 1838, of the said Orphans’ Court, the said William Hirdns presented a further petition, setting forth these facts, and that since his acceptance of the first allotment the said John Warren, who was then a minor and the eldest son of the said deceased, had attained his majority, and had since died intestate and without issue, and without having in any manner aliened his interest in. said lands, and that the right of acceptance in the other allotment had thereby descended and devolved upon him in right of his wife, the sister of the whole blood, the said Charles and Mary Warren still being under the age of twenty-one years; and prayed the Court to assign the residue of the lands to him, which was done upon his entering into recognizance to

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pay the other parties entitled their respective shares of the appraised value of the same. Charles H.B. Day had since married and was now the husband of the said Mary Warren, and it was admitted that the said William Hirons had paid to him, in right of his wife, and to the said Charles Warren, each, the one-fourth part of the said appraised value of the said second allotment, secured to be paid by the said last-mentioned recognizance.

The question of law reserved was whether, upon the above-stated facts, the said Charles H. B. Day, in right of his wife, the said Mary, was entitled, under the said last-mentioned recognizance and the laws of this State, to receive and recover any sum beyond the one-fourth part of the appraised value, secured to be paid by said recognizance, with interest therereon from the date of it, and if so, what sum beyond the one-fourth part thereof?

Fisher, Attorney- General, for the plaintiffs:

The plaintiffs must be entitled to the one-third instead of the one-fourth part of John Warren’s share, if the same was real estate and-was not converted into personalty by the proceedings for the division of the land in the Orphans’ Court. Dig. of 1829, p. 315, sec. 1, and p. 319, sec. 2. The words of the act are: “ Then the appraised value shall be substituted for the land; and if the valuation is to be substituted in the place of the land, it is to stand in the place of the land, and must be subject to all the rights, qualities and incidents which attach to the land itself:” Purd. Dig. 700; Dig. of 1829, 322; which shows that the appraisement and return does not of itself convert the land into money. Amer. Law Regr., vol. 1, No. 2, p. 121.

N. P. Smithers, for the defendant:

The misapprehension on the other side consists in regarding this share at this time, when this question arises, as still a part of the real estate of Samuel Warren, deceased, instead of contemplating it as the share belonging to John Warren absolutely at the time when this question first presented

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itself. If it was real estate at that time, then his sister of the whole blood and his brother and sister of the half blood, would each take, under the provisions of our act, an equal third part of it; but if it was personal property at that time, then his sister of the whole blood will take the whole of it. We rely upon the well-established rule of equitable constructions in relation to the conversion of realty into personalty, and ex conversa. The Pennsylvania statute contains no such provision as we find in our statute, nor any such words as have been read on the other side from our act, and consequently this question could never have arisen in that State.

M. W. Bates, on the same side.

I entertain the opinion that at the time of the death of John'Warren, his interest in the lands of his father was not real in its nature, but had been converted, by the express terms and operation of our act of Assembly, into an interest in the appraised value of the land, on the return of the appraisement and confirmation by the Orphans’ Court; because such is the language of the law, and the Court cannot alter it. The question, and the whole question is, did John Warren, at the time of his death, hold a share of this real estate, or a share or interest in the appraised value of it ? And that question is decided and settled by the law itself.

Comegys, for the plaintiffs:

The word substitute used in the act referred to, is merely for the purpose of enabling the Orphans’ Court to determine in what sum the recognizance shall be taken, and nothing more. The term employed is not that the land shall be converted into the appraised value in money, but that the latter shall be substituted for the former, which is a word of very different import. So long as the land remains unaccepted and unassigned in the Orphans’ Court, it continues real estate, and descends as such in all cases, on the death of a party entitled, to his heirs-at-law, not to his executors or administrators, as is the case when the substitution has been

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completed by acceptance and assignment, and Ms legal representatives claim Ms interest under or by virtue of the recognizance. Though there may be a substitution before, there can be no conversion, no complete change of the realty into personalty, until there is an acceptance and recognizance with security, or a sale of the land by the order of the Court. Such is the decision cited from Pennsylvania by my colleague. The rules of construction in courts of equity, referred to on the other side, have nothing to do with the present case, because we are now in a court of law, where such rules do not apply.

Although the statute provides, that on the appraisement and confirmation by the Orphans’ Court, the valuation shall be substituted in place of the land, there is no conversion of the realty into personalty until acceptance at the appraised value, and the assignment by the Court, or sale of the land by order and confirmation of the Court, by which alone the legal estate of the heirs in the real estate is divested and transferred* and converted into its equivalent in money, to be secured by the recognizance. The real plaintiffs, Charles H. B. Day and Mary his wife, are therefore entitled to recover from the defendant, William Hirons, upon the recognizance in question, in addition to the amount already paid them, a sum of money equal to the one-third of the one-fourth of said recognizance, with interest from the date thereof, which will constitute the one equal third part of the said appraised value with interest; that being the share of it to which they ¡were justly entitled under the act, on the death of John Warren, according to the facts stated.