High v. Worley

"WALKER, J.

It is a well recognized principle of equity jurisprudence, that the court of chancery will consider land, directed to be sold and converted into money, as money.—Adams’ Equity, 136; 2 Story’s Equity, 115, § 790; ib. 6.27, § 1212; Willard’s Equity, 47, 298, 299. The testator, Adonijah Worley, directed that the land should be retained by the executor, for the use and support of his wife and children, until his daughter Eanny Ann attained the age of sixteen years; that it should then be sold, and that the proceeds of the sale should be equally divided between his wife and children, share and share alike. The postponement of the sale, to the time of the daughter’s becoming sixteen years of age, does not prevent the operation of' the principle, and the equitable conversion of the land into personalty.—Reading v. Blackwell, 1 Baldwin, 166; Rinehart v. Harrison, ib. 177.

[2.] The land being by the will transmuted into personalty, it so remains, unless it has been re-converted into realty. Such a re-conversion is susceptible of production by the election of the beneficiaries. The rule, which permits the re-conversion by the election of the parties interested, is founded in the fitness and equity of permitting them to consult their own interests, according to the dictates of their own judgments, and in the utter folly of compelling them accomplish the same object by purchas *199 ing in at the sale.—Commonwealth v. Martin, 5 Munf. 117 -127. But the election cannot be made by a part of the several persons interested. It must be made by all. The direction to sell the land gives to each a right to have it sold, and takes away from each one the separate right to re-convert his single share, and thus have the sale of a fraction.—Fletcher v. Ashburner, 1 Brown’s C. C. 497.-500; Allison v. Wilson, 13 Serg. & K. 330; Willing v. Peters, 7 Barr, 287; Pratt v. Taliafero, 3 Leigh, 419 .

[3.] If, then, all the persons interested in the proceeds of the sale directed by the will have not elected to make the change back from the money, into which there is an equitable conversion, to its original condition of land, it is money still, and not land. The persons interested in the distribution were the widow and the three children, Williamson W., Fanny A., and Nancy E. Worley. Williamson W. Worley, after the testator’s death, died intestate and without children, having never married; but whether he left any debts, does not appear from the allegations of the bill. His interest would regularly pass to an administrator; and the state of facts does not exist, under which an equitable title in the entire interest would pass to the next of kin.as the distributees.—Vanderveer v. Alston, 16 Ala. 494 . If, then, it were conceded, that the distributees of Williamson W. Worley had made an election to take the land without a sale, the bill would be defective, in the omission to show that they had succeeded to the interest, and had the right to make the election. Fanny A. Worley, another one of the persons among whom distribution of the proceeds of the sale is directed to be made, is alleged to be a feme covert, living apart from her husband. The fact that she is living apart from her husband, does not, of itself, invest her with the power to act as a feme sole; and she must, therefore, be regarded as under all the disabilities of coverture. A married woman, of herself, is incapable of making an election, unless under some judicial authority, to re-convert her interest in the legacy into the Original condition of land. Pratt v. Taliafero, 3 Leigh, 419 ; Siter, Price & Co. v. McClanahan, 2 Grat. 280; Hannah v. Swarner, 3 W. & S. *200 223 ; Oldham v. Hughes, 2 Atk. 452. The bill does not aver the time of the marriage, or any fact showing that the feme covert would have a separate estate under any of our stacutes in her share of the proceeds of the sale of the land; and our denial of her power of election must be understood in reference to the case as made by the bill.

The wife of complainant appears to have made no election to take the land befe re the marriage with him. If it be conceded, that the child which she left was her sole distributee, and that the complainant was the sole distributee of the child, the right of election could not pass to the complainant, unless that state of'facts had been shown, which would justify a court of equity in regarding the right of the distributee as vesting, without the interposition of an administration.

From what we have said, it is clear, that the bill does not make out a ease, in which the re-conversion into land can be regarded as made, even though it be conceded that the widow has elected to take land.

The right, therefore, of the wife of the complainant passed upon her death to the administrator of her estate. We cannot assume, that there were no creditors of the deceased wife, and that therefore, under the principle settled in Vanderveer v. Alston, 16 Ala. 494 , the complete equitable title vested in her child, who was her sole distributee, and, upon the death of the child, who lived only twenty-seven days, in the complainant, who was its father and sole distributee.

The complainant has not, upon the allegations of the bill, shown anj^ title, and is, therefore, entitled neither to a discovery nor relief.—Story’s Eq. PI. §§ 317, 257.

The decree of the court below is affirmed.