With regret I dissent from the majority opinion of the court in so far as it holds that the executors and not Mrs. Martin are entitled to the rents and profits of the decedent's real estate.
The title to the real estate passed to Mrs. Martin as the residuary devisee. Having the legal title, she alone *Page 498 was vested with the right to possess the property and collect the rents. This is in accordance with the statute (Code 1931,37-6-10) which provides that "* * * when the owner of real estate in fee, or holder of a term, yielding him rent, dies, the rent thereafter due shall be recoverable by such owner's heir or devisee, or such term-holder's personal representative or devisee." Even in the case of an insolvent estate, the right to the rent descends or passes to the heir or devisee.Washington v. Castleman, 31 W. Va. 832, 8 S.E. 603; Lobdell v.Hayes, 12 Gray 236. This right remains intact until the rents are sequestered or the inheritance or devise broken by a decree of sale or a sale of the property. Hobson v. Yancey, 2 Gratt. (Va.) 73; Blow v. Maynard, 2 Leigh 29; Dunn'sExrs. v. Renick, 33 W. Va. 476, 10 S.E. 810. In the case ofWashington v. Castleman, supra, in which a tenant who had a claim against the decedent's estate sought unsuccessfully to set off his claim against the heirs' claim for rent, Judge Snyder said: "The creditor, if the estate is insolvent, must share ratably with the other creditors in the proceeds of the realty. If the estate of the decedent is solvent, and even where it is insolvent, until they are sequestered by the court at the instance of creditors, the rents and profits of the realty are not liable for debts of the decedent. Hobson v.Yancey, 2 Gratt. (Va.) 73. The rents therefore stand on higher ground and are less liable for the payment of the decedent's debts, than is the real estate itself."
The provision of the will delegating to the executors the discretion to sell the decedent's real estate did not alter Mrs. Martin's right to the rents and profits. The cases recognize a clear distinction between a devise of real estate to executors for the purpose of sale and a naked power of sale. In the latter case, the devisee is entitled to the rents and profits. Dunn's Exrs. v. Renick, supra; Bell's Admr. v.Humphrey, 8 W. Va. 1; Mosby's Admr. v. Mosby's Admr., 9 Gratt. (Va.) 584; Harrison, Wills and Administration, sec. 288. The great weight of authority in the United States is to like effect. McCarty, Exr., etc. v. McCarty, 356 Ill. 559,191 N.E. 68, *Page 499 94 A.L.R. 1137, and note; Hobson v. Yancey, et al., supra; Blow v.Maynard, supra; Dunn's Exrs. v. Renick, supra.
In Hobson v. Yancey, et al., supra, the devisees sought to compel the executor to make settlement of the estate. The will provided that the executor shall have a discretion as to the sale of the decedent's real estate. The executor had collected rents and profits from the real estate and claimed credit for certain disbursements made by him. The court held that the heirs and devisees were entitled to the rents and profits from real estate until deprived thereof by decree of the court, and if the disbursements were less than the rents and profits, then the executor shall account to the devisees for the difference. In the opinion, the court said: "As to the rents and profits,though they might in equity have been charged with debts, tothe payment of which the personal estate might proveinadequate, yet until the claim to charge them should be asserted by suit of the creditors, the heirs or devisees were entitled to them, without being accountable therefor to the creditors; and the executor receiving them was trustee of, and bound to account for them to, the heirs and devisees." (Italics supplied)
In Thomas v. Rector, 23 W. Va. 26, a case followed by several West Virginia cases, the court held that the blending of the real and personal property together as one fund in the residuary clause indicates an intention on the part of the testator to charge the real estate with the payment of pecuniary legacies. In the instant case, the residuary clause is not the ordinary residuary clause. In it, the decedent recites that she has made Mrs. Martin her residuary devisee and legatee because of love and affection and because Mrs. Martin had expended money for improvements on the real estate. It would be most difficult to say that the decedent intended, in view of the recitals in the residuary clause, that the pecuniary legacies should be paid in all events, though the daughter, who lived with her during her last days, got nothing. A testamentary charge is not the title to real estate; it is simply a claim enforceable against real estate. It is analogous to a mechanic's lien or an equitable mortgage *Page 500 or any other claim enforceable by decree of sale or under testamentary power of sale. Until the charge, if one exists, is enforced, by a sale of the property or by a sequestration of the rents, the title of the devisee remains undisturbed, and with it the right to rents and profits. Brooks v. Jackson,125 Mass. 307; Brengel v. O'Toole, 103 N.J. Eq. 339, 143 A. 361. In the former case, the Supreme Judicial Court of Massachusetts said: "The provision in the will, by which the testatrix charged and bound her real estate, and authorized her executor to sell it, had no other force than to create a lien upon the estate, and a power to sell it to satisfy that lien. It did not affect the right of heirs or devisees in the rents until the power was executed by a sale. Newcomb v. Stebbins, * * * [9 Metc. 540]; Lobdell v. Hayes, 12 Gray, 236."
The case of Earle v. Coberly, 65 W. Va. 163, 64 S.E. 628, not cited by counsel for either party, is to be distinguished from the instant case. That was a partition suit in which partition in kind was decreed. In order to partition real estate devised in the residuary clause of the will, it became necessary that the debts of the decedent be paid. This was necessary in order to perfect the title of the residuary devisee. A small part of the rents collected were applied to indebtedness due from the estate of the decedent.
The majority opinion in the instant case proceeds upon the theory that although the power of sale, provided for in the will, is in its terms discretionary, it is in fact mandatory. Therefore, the will gave rise to an equitable conversion of the real estate which took place immediately at the decedent's death. True, as the majority opinion says, the intention to convert real estate need not be expressed; "it may be necessarily implied". 3 Pom. Eq. Juris., (4th Ed.), section 1160. "Conversion is a fiction of equity applied in proper cases to carry out the intention of the testator, but, where the intention, or purpose, fails, the fiction will not be applied." 2 Pom. Eq. Juris. (4th Ed.), section 1091. This intention, however, because it is carried out by the use of a fiction, must be clear. Where doubt exists in the absence of an express intention, *Page 501 conversion will not take place. 13 Corpus Juris, 864, Conversion, section 31 (d). Under the position taken by the majority of the Court, Mrs. Martin, a favorite daughter, who had lived with and cared for decedent during her latter years and until the time of her death, and who had spent several thousand dollars of her own money in improving the estate, will take nothing under the will. The entire estate, after the payment of debts, administration and funeral expenses, and costs of the maintenance of the property, will go to Mrs. Martin's brothers and sisters, who, under the will, are general legatees. I can see no equity in such a holding. It does not serve the ends of justice. It contravenes the intention of the testatrix and does not do equity among the interested parties. For these reasons, I feel constrained to dissent from the majority opinion.
Judge Maxwell authorizes me to state that he concurs in this dissent.