The opinion of the court was delivered,
by
Woodward, J.The doctrine of equitable conversion is nothing more than the application to deeds and wills of the principle of equity which treats that as done which ought to be done. Where land is directed to be converted into money, or money into land, it is to be treated as that species of property into which the one or the other is directed to be converted. But this court said in Bleight v. The Bank, 10 Barr 132, that in order to change real into personal estate, it is essential that the direction to convert be positive and explicit; that the will, if it be by will, or the deed, if it be by contract, decisively fix upon the land the quality of money. As was said of the deed there, we may say of the will here, that this characteristic nowhere appears on its face. The testatrix authorized her executor to make sale of any part of her real estate, and if he thought it necessary, to make partition of any lands she had in common with others, but there was no more direction to sell than there was to make partition. So far from a positive and explicit direction for either of these purposes, there was no direction Avhatever, but only a power without an interest.
But here comes into view the 13th section of the Act of 24th February 1834, Purd. 282, which gives to executors possessing only a naked authority to sell real estate, the same interests therein, and the same powers and authorities over such estate, “ for all purposes of sale and conveyance, and also of remedy by entry, by action, or otherwise, as if the same had been devised to them to be sold.” This section is almost a literal reprint of the Act of 31st March 1792, 3 Smith 57, which was introduced by a preamble declaratory of the scope and meaning of the enactment in these words: “Whereas, great inconveniences are often sustained in cases where lands, tenements, or hereditaments are devised to be sold by executors, from the want of power in such executors to bring actions for the recovery of possession thereof, and against trespassers thereon, and otherwise manage such estates for the benefit of those who may be interested therein, therefore he it enacted,” &e. These words, expressive of the legislative thought of 1834, as well as of that of 1792, show that it was not the design or purpose of either statute to break the descent, or work a conversion of real estate over which a naked *88power of sale had been given to executors, but only to enable them to recover, protect, and sell the estate as fully and absolutely as if, instead of a naked power, an interest had been devised to them. They were enabling statutes the better to qualify personal representatives to preserve the estates of testators, and to carry into full effect the testamentary intention. Undoubtedly they vest the legal title in executors, but only for the purposes mentioned in the statutes, and they leave the question of equitable conversion to depend on the intention of the testator, as deduced from a construction of the whole of his will.
This seems to me to be the plain and obvious meaning of both the Act of 1792 and that of 1834; but the learned counsel insists that they should be so construed as to vest the estate in the executors as fully as an express devise to them for purposes of sale would do, and he fortifies his position by numerous and most respectable “ dicta" from our own books.
A “positive and explicit” devise of real estate to be converted into money, works a present conversion directly the testator dies, and courts of equity, proceeding on that maxim to which I alluded in the beginning of this opinion, consider it as sold and converted from the time of his death: Hutchins v. Mannington, 1 Vesey, Jr. 367; Elwin v. Elwin, 8 Vesey 556. Now, if the Act of 1834 is to be so construed as to give this effect to the devise of a naked power to sell, it will break the descent intended in half the wills that are made, and play havoc with'the intentions of testators. Nobody ever thought of treating a naked power of sale, before the statutes were made, as a conversion of the estate, and it seems preposterous to deduce from a statute, instead of his will, a testator’s intention to convert his estate. In the case of Henry v. McCloskey, 9 Watts 146, and Nagle’s Appeal, 1 Harris 262, no such construction of the statutes occurred to the mind of this court. Conversion is a question of intention, which is to be referred to the will of the testator, rather than to the statute. But where a will betrays this intention, though it confers in terms only a naked power to sell, no harm is done by the mistake of deducing the conversion from the statute instead of the will.
In the will before us we find no such intention, and we decline such a construction of the Act of 1834 as would work a conversion.
The judgment is affirmed.