Brown v. . Wilson

Clark, C. J. An action for any funds in the hands of the guardian of Ella R. Carson and of her sister Richardine which said guardian is alleged to have received as a distributive share from the estate of the father of said wards can be maintained only by the personal representatives of said wards. Goodman v. Goodman, 72 N. C., 508; Merrill v. Merrill, 92 N. C., 665. The complaint does not allege that the proceeds of the sale of the real estate belonging to said ward came into the hands of said guardian, and the plaintiff having expressed her inability to amend the complaint to so aver, the demurrer was properly sustained. As to the second ground of demurrer, the allegation in the complaint is that the realty was sold by J. H. Wilson, commissioner. The complaint does not aver and the plaintiff refused the leave given by the court to amend the complaint to' aver that the proceeds of the realty came into the hands of Wilson as guardian. The plaintiff cannot maintain this action, for it is not averred in the complaint that at the time of the sale of the realty-in 1861 the mother and aunt of the plaintiff were then minors. If they were of full age when the sale was made in 1861, such sale worked a complete conversion of the proceeds of the sale from realty into personalty, and consequently such proceeds could be recovered only by the personal representatives of the plaintiff’s mother and heir. In Benbow v. Moore, 114 N. C., 270, Shepherd, C. J., says: “It was at an early period laid down by Sir Thomas Sewell, M. R., in the leading case of Fletcher v. Ashburner, 1 Bro. C. C., 497, That money directed to be employed in the purchase of land and land directed to be sold and *639 turned into money are to be considered as that species of property into which, they are directed to be converted, and this in whatever manner the •direction is given, whether by will, by way of contract, marriage articles, settlement, or otherwise, and whether the money is actually deposited •or only covenanted to be paid, whether the land is actually conveyed or only agreed to be conveyed. The owner of the fund or the contracting parties may make land money, or money land.’ This principle is so universally accepted that it is needless to cite additional authority in its support, and it is equally well settled That every person claiming property under an instrument directing its conversion must take it in the character which that instrument has impressed upon it, and its subsequent devolution and disposition will be governed by the rules applicable to that species of property.’” 1 Williams Exrs., 551; Proctor v. Ferebee, 36 N. C., 143; Smith v. McCrary, 38 N. C., 204; Brothers v. Cartwright, 55 N. C., 113; Conly v. Kincaid, 60 N. C., 594; Adams Eq., 136. The doctrine of equitable reconversion applies only to the proceeds •of the sale of real estate belonging to infants and married women which, under the statute then and now in force, retained the character of realty, and not to the proceeds of the sale of real estate belonging to persons of full age. The fact that J. H. Wilson qualified as guardian in 1856 is no allegation that they were minors still in 1861. In fact, the land was turned.into money, and was, therefore, the subject of an action by the personal representative. The doctrine of “equitable reconversion” which 2 Mordecai Law Lectures (2 Ed.), 1370, styles the “child of the Lord Chancellor’s imagination” has no room for appli•cation, for “reconversion is the result of the election expressly made or inferred by a court of equity, and is the notional or imaginary process by which a prior constructive conversion is annulled and the constructively converted property is restored, in contemplation of a court of equity to its original actual quality.” Tb. Here there was nothing to change the money received from the sale of the land, even imaginatively, back into land. The judgments sustaining the demurrer is Affirmed.