Tazewell v. Smith's administrator

When a testator directs his real estate to be sold, and the money arising from, such sale to he paid to particular persons, the interest of the legatees is a 'vested one, although the will may give a discretion to the executor, as to the time of selling the estate. The principle will be the same, whether the estate devised to he sold, be an estate in possession, or only a remainder. The death of the devisee or legatee before the sale, will not defeat the interest, unless there is some provision in the will to that effect. The interest in the proceeds of the sale is as much a vested interest, as if the land itself Had "been immediately and directly devised. Land directed to he sold is considered as money, unless an election be made to take it as land,by some person having a right to elect. Under what circumstances the lieir at law ought to be made a party.

This was a suit brought in the Richmond chancery court, by Larkin Smith, and Sophia Ann, his wife, against Littleton W. Tazewell, executor of Benjamin Taliaferro, deceased, William McCandlish, and Mary Nelson, his wife, and others, defendants. The case disclosed by the bill, answers and exhibits, was as follows: Richard Taliaferro, by bis will, devised two tracts of land in Brunswick and Dinwiddie, to his wife, Rebecca, during her widowhood 5 and at her death or marriage, to Benjamin and Robert Taliaferro, his sons, equally to be divided between them. Benjamin Taliaferro intermarried with the complainant, Sophia Ann, and died leaving two infant children, Richard Henry and Henry T. Taliaferro, leaving a will, by which he appointed the complainant, Sophia, and Littleton W. Tazewell, his executors $ the latter of whom alone qualified, and took upon himself the office of executor. The will of Benjamin Taliaferro, after providing for his widow, the complainant Sophia, directs, that all the rest and residue of his estate, “ of what nature or kind soever, whether in possession, remainder, or reversion, may be sold by his executors, or such of them as shall qualify, “ at any time, and in any manner he or they shall “ think proper. And it is my will and desire, that the t( money arising from the sale of my property above spo‘6 ken of (after payment of my just debts,) may be laid « out by my executors, or such of them as shall act, in « any manner they may think most advisable, so as to “ produce a certain annual income; and it is my will and “ desire, that this annual income may be equally divided be- “ tween my two sons, Richard Henry and Henry Taliaferro, “ each and every year, until either of my said sons attains “ the age of twenty-one years, or marries; at which time, I “ desire that one moiety of the principal may be assigned “ and transferred to him, in like manner as the other ** moiety is given to his brother; but should either of my « said sons die before he attains the age of twenty-one, or “ marries, then it is my will and desire, that the other “ should succeed to his proportion.” Richard Henry and Henry Taliaferro, both died under the age of twenty-one, and unmarried, and during the life of the aforesaid Rebecca Taliaferro, the widow of Richard Taliaferro, and possessed of the estate in question,, under the will of her husband. Rebecca Taliaferro died shortly before the institution of this suit, without having married a second time, and consequently, without having forfeited the estate, under the will of her husband, Richard Taliaferro. No partition was ever made of the two tracts of land aforesaid, between the said Benjamin and his brother Robert, or their heirs; nor did Littleton W. Tazewell, the executor of Benjamin Taliaferro, ever execute the power vested in him by the will of the said Benjamin, of selling his estate in the lands aforesaid. Sophia Ann Taliaferro intermarried with Larkin Smith ; and contends that she is entitled to all the interest which the said Henry and Richard Taliaferro had in the estate J 4/ of the said Benjamin Taliaferro; as the mother of the said Henry and Richard, and the licit* at law of the survivor of them : that the complainants being the only persons entitled to the proceeds of the said sale, are at liberty to discharge the executor from the necessity of selling, and may elect to take the land itself. This suit was, therefore, brought against the executor and heirs of Benjamin Taliaferro, to compel the said executor to deliver up the said estate to the complainants, and to release all his right, title and interest in the same. Littleton W. Tazewell, admits the allegation of the hill, and says that the reason why he has not exercised his power of selling is, that during the life of Rebecca Taliaferro, (who had but recently died,) he supposed that no sale of the reversion of an undivided property, could be made without an immense sacrifice; and that since the termination of the life estate, the right to the property being contested, he was unwilling to do any act which might affect the interest of either party. He professes his willingness either to make sale of the land, or to surrender his interest in it, in any manner or to any person that the court might direct. The heirs of the said Benjamin Taliaferro also answered, and contended, that Richard and Henry Taliaferro received the estate by purchase from their father, and therefore the real estate must descend to their paternal kindred; that the land devised, must be considered as real and not personal estate in a court of equity, under the circumstances of this case ; and that it was purchased, not from the executor, but directly from Benjamin Taliaferro himself. In the progress of tise cause, the suit abated as to the complainant Sophia Ann Smith, by her death, and was revived in the name of Larkin Smith, her administrator; and Larkin Smith having also died, it was revived in the name of William Brooke, administrator de bonis non of Ann Sophia Smith deceased. The chancellor decided, that upon the principle of equithings agreed to be done, are to be considered as done; the real estate directed to be sold by the will, ought to be considered personal estate : that the widow of Benjamin Taliaferro having survived her two sons, though she died in the life-time of her last husband, her personal representative, the plaintiff is entitled to the remaining proceeds of the sales thereof, when the same shall be made, and to the profits which have accrued or may accrue under the sales, first for the benefit of her creditors, and then to the use of those claiming under Larkin Smith, the last husband. And that, for these purposes, partitions and sales of the land ought to be made, and an account taken of their profits, as also of the administration of the estate of the said Benjamin Taliaferro. He therefore decreed, that certain commissioners should make partition of the said lands: that an account should be rendered of the rents and profits of the said lands, as well as of the administration of Littleton W. Tazewell, upon the estate of his testator. From this interlocutory decree, the defendants obtained an appeal, by petition to the chancellor.