The following opinion, in which Bead, J., concurred, was delivered, July 2d 1868, by
Thompson, C. J.The judgment below must be sustained, if at all, on the sufficiency of the levy on the attachment of the defendant’s interest in his father’s estate, that interest being at the timé real estate. It is firmly settled with us, that the equitable conversion of realty into personalty, by force of a direction in a deed or will to sell, only takes place where the direction is positive and absolute: Nagle’s Appeal, 1 Harris 260. And this', as well as other cases, to which reference will be made, will conclusively show, that if a proposed sale is contingent, or eventual in a deed or will, equitable conversion does not follow. Nor will it follow even from an inevitable necessity to sell, in order to administer some provision of the will. On these points, in addition to the case cited, see Bleight v. The Bank, 10 Barr 131; Stoner v. Zimmerman, 9 Harris 397; Anewalt’s Appeal, 6 Wright 417; Chew v. Nicklin, 9 Id. 84. The rationale of the rule rests on a principle in equity, that that which ought to be done is to be con*438sidered as done. We adhere therefore to the opinion heretofore expressed, that the defendant’s interest in his father’s estate being a share in what is denominated in the will the “ Old Mansion Property,” was at the time of the levy real estate, the provision of the will being, “ that if any one or two of my children wish to hold the Old Mansion Property, after two of them is of age, they can do so by agreeing among themselves; if not agreeing, they can get three disinterested persons to divide and agree for them — the oldest to have the first choice; and each of my children’s share remaining in the property until they arrive at twenty-one years.” “ If none of my children purchase the Old Mansion, it must be sold to the best advantage for the use of my children, and not until the decease of my wife.” The contingent direction is apparent here, and as there was no actual conversion at the time when the attachment was served, the interest 'of the defendant remained real. It is very evident that no sale by the executors was intended, if tl^e children should agree to hold the land as provided for in the will. It is expressly contingent on this, whether there was to be a sale or not. It is therefore clearly, according to the authorities cited, not a case of equitable conversion by will.
Notwithstanding this, we think the conclusion arrived at on the former argument was correct. Mrs. Neely, the garnishee, went to trial solely on the plea of nulla bona. This of course waived any question as to the form of the writ or fact of service. Conceding that the effect of the service, as to fixing a lien on the interest attached, remains an open question to be considered under the plea, we turn our attention to the statutes bearing on the point, to ascertain if a lien was fixed. If it were not, the garnishee’s judgment and assignment took precedence of it, and was entitled to the money on the sale of the defendant’s interest, and thus the plea- of nulla bona would be sustained.
The 10th section of the Act of April 13th 1843, provides that “ all legacies given, and lands devised, to any person or persons, and any interest which any person may have in the real or personal estate of any decedent, by will, or otherwise, which are subject to foreign attachment, by the Act of the 27th of July 1842, * * * shall be subject to be attached and levied upon in satisfaction of any judgment, in the same manner as any debts due, are made subject to execution by the 22d section of the Act of 16th June 1836, entitled an act relating to executions.” Here is an explicit declaration as to what may be attached, and of the manner in which it may be attached.
In Grochenauer’s Executors v. Hostetter, 6 Harris 414, Woodward, J., in delivering the opinion of the court, seems to classify what may be attached under the words used in the' above section, thus: “ ‘ Legacies' and ‘ lands,' given or devised by will or testa* *439jnent, and any interest •which any person or persons may have in the real or personal estate of any decedent, whether by will or otherwise.” That was a case under the Act of 27th June 1842, extending foreign attachments to such interest, but the same words are used in the Act of April 13th 1843, the act now under consideration, and the classification there has equal application here. The objection in this case is, that the levy was defective in its generality. It was, “attached all the interest of Jonathan W. Neely in the estate of his father John Neely, deceased; and all legacies given to Jonathan W. Neely, by the will of John Neely, deceased, in the hands of Hannah F. Neely and Jonathan W. Neely, executors of said will, and summoned them as garnishees,” &c.
If the classification referred to above be allowable, this was a sufficient levy, and bound the interest. It seems to me very evident, that a levy in this form must have been intended by the legislature, owing to the inherent difficulty which would be constantly occurring as to what interest a defendant really had in a devised or descended estate. In case of a will, it is often a question of great difficulty to determine the nature and extent of a devisee’s interest; or whether it be real or personal. It is a question of difficulty in this case. Whether the interest be much or little, and when it may be realized, are questions arising in every case. These are facts about which a creditor, oftentimes, not cognisant of the provisions of the will, cannot know anything. This must have struck the mind of the legislature, and have superinduced the adoption of a general form of levy, without distinguishing as to the nature of the property to be attached. And this seems to have been thought by the court in the case cited above. And here it may be as well to say, we do not see any embarrassment that would result to an executor, if the interest attached be real, any more than if personal. The answer to the interrogatories, if honestly made, would disclose what the interest of a devisee is in the estate. And if any fraud or concealment were practised to cover it up, I see not why the value of the share might not be recovered as well as that of a chattel. A fraudulent garnishee could not complain of this, and an honest one would not have it to complain of.
But that this mode of attaching was intended, I think appears in the provisions deducible from the Acts of Assembly on the subject, which provide that a debtor’s interest in a decedent’s estate may be levied upon in the same manner as debts due are made subject to execution by the 22d section of the Act 16th June 1836. The section thus referred to, does not in itself direct the manner of seizing or attaching debts due, but declares them liable to execution like other goods and chattels. The 35th section of the act, however, declares that debts due may be attached and *440levied in satisfaction of a judgment “ in the manner allowed in the case of a foreign attachment.” When we turn to the Foreign Attachment Act of June 13th 1836, we find in the 8th section it is provided that in case of personal property, “ the ofiicer to whom such writ (foreign attachment) shall be directed, shall go to the person in whose hands or possession the defendant’s goods or effects are supposed to be, and then and there declare, in the presence of one or more credible witnesses of the neighborhood, that he attaches the said goods' and effects," as done here, and from that time forth, says the act, the same shall be bound and in the power of the officer. See 50 Id. It is not to be doubted that “goods and effects” include or embrace debts due: Bouv. Law.Diet. verb. “Effects.”
We have thus the direction of the 10th section of the Act of 13th April 1843, to authorize the levy or attachment of a defendant’s interest in the estate of a decedent by the general description of his interest without a specific designation, which is to be done in the same manner in which debts due are to be attached or levied, and when so levied and a refunding bond given, the act declares that the plaintiff in the judgment shall have the same rights in all respects which the debtor may have had, and no greater in any respect, and that they are by the act placed within his power. IIow long it shall continue bound is not said.
With these views, we are brought to the conclusion that the service of the attachment bound the interest of the defendant in his father’s estate from its date; and as that was prior to the confession of judgment of Jonathan W. Neely, the defendant in the plaintiff’s execution, to his mother, the garnishee, and his assignment of all his “ estate, right, title and interest” in his father’s estate, to hold in satisfaction of the judgment, the plaintiff below was entitled to the money in the hands of the garnishee, the proceeds of that share. Nothing more was claimed. -It is very doubtful whether the garnishee in strictness was entitled to have given in evidence the assignment to her of the property attached in satisfaction of her judgment against Jonathan W. Neely, under the plea of nulla bona; at least without notice of special matter: Priv. Lond. 270; Tr. & Haley’s Prac. by Fish, vol. 2, p. 848. But we have predicated nothing of this, and only suggest it for future consideration by the profession.
An objection of apparent force in this case, is the duration of the lien of the execution attachment in cases of this kind. In case of a foreign attachment levied on real estate, there is no limitation of the lien of the writ: Schacklett & Glyde’s Appeal, 2 Harris 326. The lien, attributable to the execution of the writ, says Gibson, C. J., is a necessary consequence of a common-law principle which creates it whenever property is seized to make satisfaction; and he instances the fact that a levy or a testatum *441fi. fa. binds the land, though the judgment does not. That there is no limitation of lien in the writ of foreign attachment, see also Price on Liens 307; although the judgment is limited as in other cases. The writ operates as a lien, for the statute declares it shall bind without fixing any limitation, as already noticed.
The execution process by attachment is distinctly assimilated to the foreign attachment process by the Act of 16th June 1836, § 35, and by the 10th section of the Act of 13th April 1843. In the former, the execution of the process is to be in the manner allowed in case of foreign attachment, and in the latter the words are substantially identical. If there be no limitation of the lien ofi the writ in the one case, I see not how we are to import it into the other.
By the 51st section of the Foreign Attachment Act of 1836, where real estate shall have been attached, it is declared that the execution of the writ shall bind the same as against purchasers and mortgagees (and judgment creditors, vide 2 Harris 326), and that it shall be the duty of the sheriff to file in the office of the prothonotary of the court, a description of the property within five days after he shall have levied the attachment; and also to enter the same on his own docket. There is no limitation to the binding force of the levy declared. I know of no practice, however, of this kind in the execution-attachment process. It was intended as a means, no doubt, of notice to all persons of the lien of the writ: Report of Revisers, Parke and Johnston 713. But if it were a practice common to the execution attachment, as well as to the writ of foreign attachment, and had been omitted to be observed in this instance, Mrs. Neely could not complain of want of notice; she had it in the service of the attachment, and what the subject of it was she declares in her answer to the interrogatories propounded, and that interest she claims by assignment, after the attachment served.
Under the influence of the foregoing considerations, we think the execution attachment was entitled to be satisfied out of the proceeds of Jonathan W. Neely’s interest in his father’s estate, in preference to the claim of the garnishee, and. that the judgment must be Affirmed.
The following opinion was delivered on the same day, by
Sharswood, J.I concur in affirming the judgment, though not for the reasons assigned in the opinion just delivered. My conclusion, though with much hesitation, is, that there was in this case a conversion. The will of John Neely is in some parts very obscure, but I think there is in it a positive and explicit direction that his land should at all .events be turned into money. He evidently contemplated that on two of his children coming of age, one or both of them might wish to hold the Old Mansion property. *442If they should, he provides that they may “ by agreeing themselves, if not agree, they can get three disinterested persons to divide and agree for them.” It is rather difficult to suppose that the two children who first arrived at full age were to appraise the property and take it at their own price, or even have it appraised by three persons of their own selection. Yet certainly the testator intended some appraisement, for he immediately adds, “ the eldest to have the first choice, and each of my children’s share remaining in the property until they arrive at twenty-one years.” However this may be, none of his children were to take or hold it without some act or election by them. “ In case none of my children purchase the Old Mansion, it must be sold to the best advantage for the use of my children, and not until after the decease of my wife.” Purchase implies sale, and sale means conversion into money. It matters not whether the purchase be by one or more of the children or by a stranger. Until the act is done, no interest vests in any of them as real estate. It is not like a descent of land in intestacy, subject to appraisement and allotment among all the children, or if all refuse, then to be sold. There, until the allotment or sale takes place, it is real estate; and it would remain so if no proceedings in partition were had. The children under the intestate law inherit by descent as tenants in common. But here if no act is done on the part of the children to take the property, it must be sold. I agree that to work a conversion, the direction to convert must be positive and explicit. The will, if it be will, or the deed, if it be by contract, must decisively fix upon the land the quality of money. A will or deed must direct a sale absolutely, or out and out, for all purposes, irrespective of contingencies, and independent of all discretion: Bleight v. The Manufacturers’ and Mechanics’ Bank, 10 Barr 131. Here there is the most absolute direction. “ If none of the children purchase, it must be sold.” It must be sold then either to one or more of the children, or to a stranger. There is no contingency other than such as the law implies wherever there is a direction to sell absolutely. The parties interested in the proceeds may elect to take the land as land: Smith v. Starr, 3 Whart. 62; Stuck v. Mackey, 4 W. & S. 196; Willing v. Peters, 7 Barr 287; Miller v. Meetch, 8 Id. 417. If a testator should provide that on the death of his wife his land should be appraised by disinterested persons, and offered at that price to his children in succession, and if no one or more elected to take that then it should be sold and the proceeds divided, this, it appears to me, would be a conversion. No one of the children would have any interest in the land as land until election. A judgment would be no lien on their interest. There is no contingency as to the conversion other than such as exists in every the most absolute direction to sell where those interested are sui juris. They may *443disappoint the conversion by electing to take the land as land. When they do so elect, it is a new acquisition of title: Burr v. Sim, 1 Whart. 252. If a testator, after directing absolutely a sale and division of the proceeds among his children, should add, “unless they wish to hold it,” it would not, as it appears to me, be on account of such expression any the less a conversion. The contingency is no more than the law would have annexed without those words. JExpressio eorum quce tacite insunt nihil operatur. It was entirely different in Nagle’s Appeal, 1 Harris 260. There the sale was not to take place unless the majority of the children agreed. “ There is a wide difference,” said Judge Bell, “between giving assent to a power of sale, without which it is wholly inoperative, and defeating an existing power by electing to take the subject of it in specie. In the former instance the nature of the property remains intact until assent; in the latter it is converted until election made.”
Considering, then, that the interest of the defendant in the estate of John Neely was personalty, I perceive no error in the rulings of the court below. If, however, it was real estate, the strong inclination of my mind would be to unite with my brothers Strong and Agnew in holding that the attachment-execution not having been served in the manner provided by law in the case of foreign attachment, was not available to create a lien independent of the judgment upon which it issued.