DISSENT: Oliver, J. Nicolaus Petersen died testate in January, 1918. The material portion of his will reads:
"Paragraph 2. I hereby will, devise and bequeath to my beloved wife, Margaretha Petersen, during the continuance of *Page 757 her natural life time, the Southwest quarter of Section Twenty two (22) and the North west quarter of Section Twenty seven (27) all in Township seventy seven, Range Thirty eight, Pottawattamie County, Iowa, on her death or in case I survive her on my death it is my wish and desire that said land shall be sold and the proceeds divided equally among my six (6) children as hereinafter specified, in equal shares share and share alike."
Another portion of the will designates the six children as Matt H. Petersen, Nick M. Petersen, Carl Petersen, Louise Oerman, nee Petersen, Agnes Stamp, nee Petersen, Wilhelmina Petersen.
The widow and all of the children survived the testator. Margaretha Petersen, the life tenant, was appointed as executrix of the estate which was closed in 1919.
In 1923, Matt Petersen, a son of decedent, was adjudged a bankrupt. He did not list an interest in the estate of his father in his property schedule. On January 7, 1924, the trustee in bankruptcy sold all of the interest of the bankrupt in the real estate described in paragraph 2 of the will to defendant, G.C. Wyland. The interest of the remaining defendants is apparently based on the trustee's deed to Mr. Wyland.
Matt Petersen died in 1937. He was survived by his three sons who are plaintiffs in this litigation. Margaretha Petersen, executrix and widow of the decedent, died in July 1938.
On August 15, 1939, an order reopening the estate was entered on the application of the assignee of the interest in the estate of Nick Petersen, a son of deceased, beneficiary under paragraph 2 of the will, stating that the life tenant was deceased and that to carry out the intent of the testator and comply with the terms of the will it was necessary that the estate be reopened and that an administrator c.t.a. be appointed to sell the real estate and divide the proceeds in harmony with paragraph 2 of the will. The order appointed the plaintiff herein, Rudolph Peters, administrator c.t.a. for the purpose of selling the real estate and dividing the proceeds among the beneficiaries.
Thereupon plaintiffs instituted this suit. The petition *Page 758 alleged the will produced an equitable conversion of the real estate into personalty; that Matt Petersen acquired no interest in the real estate by the will; that the trustee's deed purporting to convey the interest of the bankrupt in the real estate to the grantee, Wyland, was of no force or effect as the bankrupt did not own any interest in the real estate and asked that the title to the real estate be quieted in the administrator for the purpose of sale under the provisions of the will and that the court decree that plaintiffs, who are heirs of Matt Petersen, will be entitled to one sixth of the proceeds of the sale when made by the administrator.
The answer alleged a reconversion of the property to real estate and that the purchaser from the trustee in bankruptcy acquired all of the interest of Matt Petersen acquired under the will whether it be denominated real or personal property.
The court found that the children received a vested remainder in the real estate or the proceeds from the sale thereof; that they elected at the time the estate was closed to treat the devise or bequest as realty, thus effecting a reconversion, and that whatsoever interest Matt Petersen had in and to the real estate under the will of decedent passed to and became the property of the trustee in bankruptcy.
[1] I. Appellants' position on the question of conversion is substantially as follows:
The conversion from realty into personalty took place at the time of the death of the life tenant in 1938; that during the period of the life tenancy the title to the remainder was in the estate of Nicolaus Petersen; that not only the enjoyment of the gift of the remainder, but the gift itself, was postponed to the date of the death of the life tenant; that at the time of the adjudication of bankruptcy in 1923, the bankrupt had acquired no property of any kind under paragraph 2 and therefore there was no property belonging to the bankrupt in the jurisdiction of the bankruptcy court that was subject to a conveyance by the trustee; that Matt Petersen, son of decedent, never had any interest in the real estate.
We agree that Matt Petersen was not devised real estate by the will, but cannot agree with the proposition that he acquired *Page 759 no interest of any nature under paragraph 2 of the will until the death of the life tenant in 1938. The will contained an express direction that the land be sold on the death of the life tenant and the proceeds be divided equally among his six children. We hold the will accomplished an equitable conversion of the remainder at the time of the death of testator, though the sale of the land was postponed to a time subsequent to his death, that is, the death of the life tenant; that the interest of the children acquired under the will was personal in character which gift vested in them at the death of the testator — its enjoyment being postponed for the sole purpose of letting in the life estate.
We think it is plain the testator did not intend to devise real estate to his children.
There is no merit to the suggestion in the record that the gift to the children was contingent. The beneficiaries of the remainder interest are definite and certain and they had a present right at the death of the testator to the enjoyment of the gift at a certain time in the future — the death of the life tenant.
In Beaver v. Ross, 140 Iowa 154, 118 N.W. 287, 20 L.R.A., N.S., 65, 17 Ann. Cas. 640, the will devised a life estate to testator's wife and provided that on her death the real estate be sold and after deducting $2,500 from the proceeds of the sale for a trust fund for one child the remaining proceeds were to be equally divided among the testator's children. The court said about the doctrine of conversion at page 158 of140 Iowa, page 289 of 118 N.W.:
"It was quite generally held that there need be no devise in terms, to testators, executors, or to trustees in order that the doctrine of equitable conversion may apply. * * * And the fact that the sale is postponed to a time subsequent to the death of the testator is not controlling. * * *
"Where there is a postponement of the sale to a time subsequent to testator's death, the courts are in conflict regarding the time when the conversion takes place; * * * The great weight of authority is in favor of the proposition that the conversion takes place at the instant of testator's death, and that all *Page 760 property rights must be determined as if the conversion had taken place at that time, and the rights of the parties are adjusted as if the property were personalty. In cases where the doctrine applies either by reason of the act of the parties or by operation of law, the proceeds are regarded as personal property. In other words, this interest passes as personalty, and the legatees have no such estate in the land as is subject to a judgment or lien or to an execution for the sale of real estate."
In 19 Am. Jur. 21, section 27, it is stated:
"Under wills. — Where land is directed by a testator to be sold at, within, or after a definite future time, it is to be regarded as converted into personalty as of the time of the testator's death, and all property rights must be determined as if actual conversion had taken place at such time. Thus, where a sale is directed to be made upon the death of the testator's widow or upon the arrival of children at a specified age or after or within a certain period, the property rights of the beneficiaries of the proceeds of sale will be regarded as existing in personalty, without regard to the remoteness of the time fixed for the actual conversion of the land by sale. * * * If, however, the direction in a will to sell land is based upon a contingency — such as, the request or consent of a certain person, or any other event — then conversion does not take place until actual sale or until the occurrence of the contingency." In the instant case the sale does not depend on any condition or contingency.
See also on this issue: In re Estate of Jackson, 217 Iowa 1046,252 N.W. 775, 91 A.L.R. 937; Ihle v Ihle, 222 Iowa 1086,270 N.W. 452; In re Estate of Schwertley, 228 Iowa 1209, 293 N.W. 445; Dever v. Turner, 200 Iowa 926, 205 N.W. 755; and see Hiller v. Herrick, 189 Iowa 668, 179 N.W. 113.
[2] II. We cannot agree with the finding of the trial court and the contention of appellees that there was a reconversion to real property by agreement of all the beneficiaries of the remainder. It is well settled that all of the legatees may, before the power to sell is exercised, by some unequivocal act or declaration elect to take the land in lieu of the proceeds. Dever v. *Page 761 Turner, 200 Iowa 926, 205 N.W. 755, supra; In re Estate of Warner, 209 Iowa 948, 229 N.W. 241.
The decision of the court that a reconversion was accomplished by an agreement of all the beneficiaries is based on a receipt referred to as a waiver, signed by all of the children at the time of the closing of the estate in 1919, and the fact the estate was closed prior to the time a sale was made.
The receipt signed by each of the children reads:
"363.02 Ex. B. Sept. 15, 1919
"Received from Margaretha Petersen, exc., three hundred sixty three and 02/100 Dollars and my undivided one sixth share interest in George Geddes land contract now in the hands of Margaretha Petersen, agent. In full for my distributive share in personal estate of Nicolaus Petersen, deceased."
The order closing the estate contains the following language:
"That all assets of the estate have been collected * * * that distribution of this estate has been made * * * And that nothingfurther remains to be done herein, and said final report is approved and the executrix stands discharged."
The receipt refers to specific personal property, the amount of $363.02 being cash received from executrix on the closing of the estate. It contains no reference to the real estate and cannot be construed as referring to the provisions of paragraph 2 of the will.
We are of the opinion the statement in the order closing the estate "that distribution of this estate has been made" refers only to the specific cash and other personal property described in the receipt.
The phrase in the order "nothing further remains to be done herein" cannot be construed as a finding that the beneficiaries had unequivocally elected to make a reconversion. It was the report of the executrix that was being approved and it is true that she had performed all of her duties as executrix and that nothing remained to be done by her. All of the beneficiaries knew that the duty to sell the real estate under the will did not *Page 762 rest on the executrix as it was not to be sold until after her death.
Mrs. Petersen lived 19 years after her discharge. She had a life estate in the real property and had distributed all the personal property prior to her discharge. It must have been apparent to all concerned in the estate that an administrator c.t.a. would have to be appointed after the death of the life tenant to carry out the terms of the will. No purpose would have been served in keeping the estate open during the life of the life tenant.
The signing of the receipt and closing the estate are consistent with an intention of the beneficiaries to have the land sold after the death of the life tenant pursuant to the terms of paragraph 2.
Each child of decedent had a right to have a one-sixth interest in the proceeds of the sale under the will. None of the children are parties to this suit. Agnes Stamp, a daughter of decedent, testified for plaintiffs on the question of a reconversion. She purports to state what the "understanding" of all the children was about the real estate. Her testimony on cross-examination is not in harmony with her direct examination. Assuming her testimony would bind the other children we think it supports plaintiffs' contention that there was no unequivocal act, agreement or declaration by all of the children that would amount to an election to reconvert. Her final statement oncross-examination about the "understanding" was: "It was to be sold and the money divided. That was in my father's will you see, after her death."
[3] III. We agree with appellees' contention and the view of the trial court that whatever interest the bankrupt acquired under the will, whether it be personalty or realty, passed by the trustee's deed and we have held herein that the nature of that interest is personal property which gift vested at the testator's death.
The adjudication of bankruptcy vested title to all of the property of the bankrupt acquired under the will in the trustee.
In holding that the interest of a bankrupt as a real estate *Page 763 remainderman, whether the interest be contingent or vested, passes to the trustee in bankruptcy, this court, in Noonan v. State Bank of Livermore, 211 Iowa 401, 402, 233 N.W. 487, 488, speaking through Mr. Justice Albert, said:
"In 1 Federal Statutes Annotated (2d Ed.) 1150, it is said that a trustee in bankruptcy is vested by operation of law with the title of the bankrupt in (Subdivision 5, page 1171) property which, prior to the filing of the petition, he could by any means have transferred, or which might have been levied upon and sold under judicial process against him."
It is clear that Matt Petersen could have transferred the property rights acquired by the will.
The application of the trustee in bankruptcy for authority to sell stated that the one-sixth interest of the bankrupt in the real estate was subject to a life estate and was acquired by virtue of the will of his father, Nicolaus Petersen. This interest was, under paragraph 2, in the nature of either personalty or realty, its legal character depending upon a proper construction of the will. But whatever the nature of the interest, it passed to the trustee in bankruptcy. The order of the referee directed a sale of all the interest of the bankrupt in the real estate. As often stated, equitable conversion is a constructive alteration in the nature of property, an equitable fiction devised to execute the intention of the testator, and we hold the words in the conveyance clause of the deed "all of the right, title and interest of the bankrupt in and to the real estate" must be construed as conveying all of the interest of the bankrupt, whether it was real or personal property.
The trustee only acquired the property rights conveyed to the bankrupt by the will which was the right to have the property sold on the death of the life tenant and to receive one sixth of the proceeds. It follows that the deed conveyed and the grantee received only a right to the proceeds when sold by the administrator.
The plaintiffs, who are heirs of the bankrupt, will, when *Page 764 the land is sold, have no right to one sixth of the proceeds as against the defendants.
That part of the decree holding that there was a reconversion, that the plaintiff administrator was without power under the will to sell the real estate, and that the trustee's deed conveyed a one-sixth interest in the real estate to the grantee and dismissing the petition as to the administrator is reversed; that part of the decree dismissing the petition as to the plaintiffs who are heirs of Matt Petersen is affirmed.
Reversed in part and affirmed in part and remanded for a decree in harmony with this opinion.
BLISS, C.J., and GARFIELD, MILLER, HALE, SAGER, and WENNERSTRUM, JJ., concur.
OLIVER, J., dissents from Division III.