Counsel for plaintiff have stated to the Court that the properties have various types of improvements, in various states of repair, and will be most difficult to dispose of in an orderly fashion. Under these circumstances, it is apparent that to 'distribute' carries more meaning than in the ordinary case; plaintiff is required to take active steps to preserve the property and to assure to the beneficiaries of the trust advantageous disposition of the property.
The trustee here has such a power of management or control as to bring it within the exception to the general rule found in Title 45, Sec. 1201, District of Columbia Code.
This question relates to property in which testator had a fractional interest and which he, together with the other owners, contracted to sell before his death. A rider was attached to these contracts of sale requiring the sellers to procure court approval of the sale as it related to the one-twenty-fourth interest of minors therein, in accordance with Sec. 213, Title 21, District of Columbia Code. Testator died before the conditions were fulfilled. Testator having been at the time of his death a resident of the state of Maryland, the property will pass under Maryland law if it be personalty, under District of Columbia law if it be real property. This is the proper Court to determine the character of the property. Holcomb v. Wright, 5 App.D.C. 76.
The District of Columbia follows the general rule that a contract of sale of land effects an equitable conversion of it into personalty, and if the vendor dies before the performance of the contract, his rights in it descend to his personal representative. Griffith v. Stewart, 31 App.D.C. 29. The issue here is whether the conditions in the riders, not having been performed, rendered the contract incapable of specific performance and hence preclude equitable conversion.
While the conditions were subsequently fulfilled by testator's executor, and the property sold, the Court must examine the contract as of the time of the death of testator to determine whether equitable conversion had taken place.
This exact question has not been ruled on in this jurisdiction. A statement of the general view, however, is found in In re De Stuers' Estate, 199 Misc. 777, 99 N.Y.S.2d 739, 742. In that case testator died after executing a contract of sale of land, but before securing, as he was bound to do under the contract, releases surrendering or judgments terminating the inchoate rights of dower of two prior wives. The Court said:
'The doctrine of equitable conversion provides that a court of equity will, for certain purposes, consider the interest of a vendor after the mere execution of a contract for the sale of realty as already converted into personal property and the interest of the vendee as realty, even prior to actual conversion, as if the mutual covenants contained in the contract had already been executed. The vendor having manifested an intention to convert the realty at a future date, the court will regard the contract as already performed and the vendee as the 'equitable owner."
There might conceivably be circumstances which would preclude such a conversion, but as the Court said in Flomerfelt v. Siglin, 155 Ala. 633, 47 So. 106, 108:
'It is true the contract must be an enforceable one at the death of either party thereto; but enforceability at the time of death of one of the parties refers to the validity of the contract, and not to events in the nature of conditions which may not have been performed because performance was not due at the time of the death of the testator. It is sufficient if these conditions can be performed by his representative.'
The conditions embodied in the riders to the contracts in question were of just such a nature, and did not preclude equitable conversion. The interest of testator in these properties at the time of his death was personalty.
Counsel for plaintiff will submit an appropriate order conforming to the views expressed above.
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