dissenting :
The will in this case contains an imperative and unconditioned direction for the sale of testator’s real estate upon the death of the widow, to whom' a life estate is given. "With nothing to countervail or qualify this positive direction, the *95undoubted effect would be a conversion of the real estate into money. The contention is that the direction to sell, though imperative, has regard to a conversion for a limited special purpose, that is to say, for convenience of division and distribution between testator’s two daughters, to whom the will gives the entire proceeds of the sale ; that inasmuch as both daughters died without issue, one unmarried, during the widow’s life tenancy, a sale is not required for the purpose of the will; in other words, that the direction to sell was but a means to a definite end, and the object failing the incident fell with it.
The doctrine of equitable conversion is undoubtedly subject to the qualification here expressed. Whether the present case falls within the qualification is the determining question here. A conversion directed by a testator is a conversion only for the purposes of the will; when the purpose is limited and special the conversion takes place only so far as it may be consistent with and is related to the purpose indicated. It is universally allowed that when the purpose or object of the conversion fails, the estate remains unconverted to the extent of such failure. But what is meant by failure of purpose or failure of object? Both by text-writers and in the adjudicated cases these terms are used interchangeably, and each may be regarded as the other’s equivalent. We ean perhaps turn to no authoritative definition of either, yet an examination of the cases will show a fixed and definite meaning which has never been departed from. This much maybe safely affirmed, that in every adjudication where failure of purpose or object has been allowed to defeat a positive direction to sell, failure was held to mean failure in the gift itself by lapse or other certain avoidance, the payment of which was the object and purpose of the direction. In no case has the qualification been applied where the gift had become effective by the vesting in the donee. In the leading and initial case of Ackroyd v. Smithson, 1 Bro. C. C. 503, the disposition of money to arise from the sale of the real estate was originally completed, but lapse by the death of two of the residuary legatees in the lifetime of the testator caused the failure of the disposition as to their two shares, which, although actually converted into money, resulted to the heir at law as undisposed real estate. This case established the rule, since invariably followed, in cases *96of lapsed gifts. It was in turn followed by cases where the qualification was applied to defeat the general rule, on the ground that the gift was illegal and therefore failed, as where the gift offended against the rule relating to perpetuities. It Avas applied also where the gift failed because it Avas made to depend on a contingency that never happened; and to cases where the direction was to sell for the purpose of paying debts Avhich the testator subsequent to the making of his will had himself paid. These cases define the limits of the qualification as fixed by English authorities, and nothing can be found in our oavii cases that gives countenance to any wider application. While the qualifying doctrine has frequently been recognized in our cases, it has rarely happened in Pennsylvania that the qualification has been applied to defeat or avoid a positive direction to sell. Luffberry’s Appeal, 125 Pa. 513, is an instance Avhere it Avas applied, on the ground that a charitable gift for the payment of Avhich the property directed to be sold Avas void, because the testator did not survive the statutory period required in such case. Rudy’s Estate, Hudson’s Appeal, 185 Pa. 359, is another. This latter case is supposed to make for appellants’ contention; but an examination Avill show that it is in no respect a divergence from the rule as we have stated it to be. In that case, following the direction to sell upon the death of the widow, Avas a gift of the proceeds of the sale to testator’s two children, Sarah. K. and George W., “ if they be living, or the issue of such of them as may be deceased.” George W. died in the lifetime of the testator; Sarah survived the testator, but died during the life tenancy, leaving a husband and two children. The husband, as life tenant of the undivided fourth in the realty, petitioned for an order of sale, and a division of the proceeds agreeably to the provisions of the Avill. The petition was denied because the admitted purpose of the direction to sell Avas to effect a convenient division and transmission of testator’s property, and inasmuch as the share of George W. had lapsed, he having died in the testator’s lifetime, with the result that the entire estate passed to Sarah 3L there was an entire failure of purpose, and the conversion Avas therefore avoided. The lapsing of the gift to George W. Avas the determining factor, as is fully indicated in the opinion of the court beloAV, upon Avhich the decree dismissing the petition was *97affirmed. Referring to the fact that the retention of the quality of the estate which the testator intended to transmute into another different quality, may work a radical change in the interests of his beneficiaries, the learned judge says: “ But that consideration can have no weight when we reflect that what has happened was outside of his contemplation altogether. He supposed that more than one person should share the residue. How can we, with any show of propriety, speculate upon what, if he had foreseen the actual event, he would or would not have done either by way of preferring the heir on the one hand or the next of kin on the other ? The share which is in controversy lapsed by operation of law. Its disposition cannot be referred to an intention of the testator, because he had no intention with regard to it.” The case of Yerkes v. Yerkes, 200 Pa. 419, also relied upon by the appellants, ife not in point. The ground upon which the decision there rests is, that the direction to sell was not imperative and peremptory, and consequently did not work a conversion. "Whatever other cases there are in Pennsylvania, where a direction to sell has been avoided because of failure of purpose, it may confidently be affirmed, that upon examination each will be found to rest upon the insufficiency of the will to make effective some particular disposition of all or part of testator’s estate. In the present case there was no failure of the gift, and therefore no failure of purpose, notwithstanding the fact that before actual conversion of the land others had succeeded to the rights of the beneficiaries named in the will. Immediately upon the death of the testator the gift which was the proceeds of the sale, vested in the two daughters. It comes to nothing that they never had actual enjoyment of it; it vested in them, and was theirs to do with as they pleased. As was said of a similar bequest in Morrow v. Brenizer, 2 Rawle, 185, it vested as money, not by the magic of a fiction, and contrary to the dictates of common sense, but by the express provisions in the will which impressed upon it that particular character. Here, as there, it requires a fiction to make it anything else. It is a mere assumption to say that the testator’s purpose contemplated nothing but equality of division between his two daughters. Had they or either of them died leaving issue, it would hardly be pretended that the testator’s provision did not have *98regard to division among such issue. Neither gift nor the incident of sale was made dependent upon their having issue. Admitting that the purpose of the direction was for distribution of the proceeds of sale, there is nothing in the will that gives support to the theory that no distribution was intended except in the event of the two daughters .surviving the period of sale.
It is idle to contend that the decision in the present case does not mark a wide departure from long-established principles. The plain logic of it is, that notwithstanding a testator has directed in unequivocal and unconditional terms that his real estate be sold, that this direction is to be wholly disregarded if by reason of the happening of certain events after testator’s death a sale is unnecessary to effectuate a purpose, not expressed in the will, but one which to the judicial mind seems to have been the purpose the testator had in view in directing the sale.
If there be any authority for so conditioning the application of the doctrine of conversion my attention has not been directed to it.
' I dissent from the view expressed in the majority opinion in this case.
Brown and Potter, JJ., join in the dissent.