Benbow v. . Moore

Siiepi-ierb, 0. J.: The defendant Mary A. Moore alleges that the mill tract mentioned in the pleadings was purchased by her husband, IT. C. Moore, with money belonging to her separate estate, and she prays the Court to declare a trust in her favor against the heirs at law of the said H. 0. Moore, to whom the legal title descended. The money used in the purchase of the land was the share to . which the said Mary was entitled in the proceeds of certain' lands in Tennessee which were sold under the provisions of the will of her uncle, John Cunningham, and was received by her husband subsequently to the adoption of the present Constitution. The question presented is whether this money was the property of the husband jure mariti; and as the marriage was contracted in 1860, and before the death of the testator in the same year, it is necessary to determine whether under the will there was an equitable conversion of the said lands into personalty. It is 'a familiar maxim in equity “that things shall be considoi-ed as actually done which ought to have been done,” and it is *270 with reference to this principle that land is, under some circumstances, regarded as mone}7 and money as land. 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 emplojmd in the purchase of land and land directed to be sold and turned into money are to be considered as that species of property into whicli 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 ho 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 on Exrs., 551; Smith v. McCrary, 3 Ired. Eq., 204 ; Brothers v. Cartright, 2 Jones’ Eq., 113 ; Conly v. Kincaid, 1 Winston Eq., 44; Proctor v. Ferebee, 3 Ired. Eq., 143; Adams’ Eq., 136. It is undoubtedly true, as contended by counsel, that this constructive conversion cannot take place unless there is imposed upon the executor or other trustee an imperative duty to sell, arising either by express command or necessary implication. These conditions, however, are fully met in the present case, as the will expressly directs that the land shall be sold, and the provision that it shall be sold to a certain person (John Overton) at a price -to *271 be ascertained in the manner prescribed does not affect the operation of the -principle when the price has been actually ascertained and paid and a conveyance duly executed. If the imperative duty of selling had not been imposed, and it had been left entirely to the discretion of the executor, there would have been no conversion until the contemplated purchaser had exercised his option and a contract of sale actually made. If, however, there is a binding contract to convey upon the option of the vendee, and the vendee exercises the option, the conversion will relate back to the time of the execution of the contract. “Thus” (says Mr. Pomeroy, 3 Eq. Jur., 1163) “where a lessee with an option to purchase, or any other purchaser with an option, duly declares his option after the death of the lessor or vendor, who is the owner in fee, the realty is thereby converted retrospectively as between those claiming under the lessor or vendor, or under his will — that is, as between the heir or devisee on one side and the legatees or next of kin on the other, the proceeds will go to his personal representatives, though the heir or devisee will be entitled to the rents up tó the time when the option is declared.” Bisp-liam Eq., 321; 1 Beach Eq. Jur., 524; Adams’ Eq., 141. This principle is equally applicable where the duty to sell is imposed by will. Indeed, it has been well remarked that “The question of conversion is one of intention, and the question is, Did the testator intend to have his real estate converted into personalty immediately upon his death? If he did a court of equity must give such intent effect, and treat the realty as personal property from that time.” Clift v. Maser, 116 N. Y., 144; Beach Eq. Jur., 522. “It is presumed,” (says Judge Story, 2 Com., 791) “that the parties in directing money to be invested in land, or land to be turned into money, intend that the property shall assume the very character of the property into which *272 it is to be converted, whatever may be the manner in which that direction is given.” “The doctrine,” says Mr. Bispham, “is to be applied to all those cases in which a general intention of the testator is sufficiently manifested to give the property to the donee in a condition different from that in which it exists at the time when the will goes into effect. * * * The question always is, Did the testator intend to give money or to give land, and has that intention been sufficiently expressed ? Once arrived at the intention by proper rules of interpretation, and the property will then be considered as impressed with that character which the testator designed it should bear when it reached ■ the hands of the beneficiary.” Bispham Prin. Kq., 312. We have referred to the foregoing authorities because some stress seems to be placed by counsel upon the method in which the sale was to be made, whereas the controlling idea is whether the testator intended to change the character of the property. If this be clear, then, if the purchaser comply with the terms of the sale provided in the will, it is the duty of the Courts to give full effect to his intention by declaring a conversion at the date of his death. Looking, then, beyond the express direction to sell, and considering the general purpose of the will as indicated by its context, it is clear that the testator intended a conversion of all his real property. There is nothing to indicate that he intended to die intestate as to any portion of his property and especially of his realty, as he makes no disposition of it in that character, but provides that the proceeds of its sale, together with that of the personalty, shall be divided among certain of his nieces and nephews. The authorities are united to the effect that" where there is an express or implied direction to convert the property the manner of the sale is immaterial. Here there is no con *273 tingency upon which the power is to be exorcised. The direction to sell is positive and unequivocal and the method* in which the price is to be ascertained is a mere incident to the exercise of the power and nothing more. If, as we have seen, the principle of equitable conversion applies, there is no question but that the sale when made relates to the death of the testator. Pom. Eq. Jur., 1162; Bispham Eq., 320; Conly v. Kincaid, supra; Smith v. McCrary, supra; Proctor v. Ferebee, supra. The land, then, having been converted at the date of the death of the testator, the share of the said money was a chose in action {Matthews v. Copeland, 79 N. C., 493), and under the cases just cited vested in the husband at that time provided he reduced it into possession during the coverture. This right to reduce it into possession was a vested right and the husband could not be deprived of it by a subsequent change in the law. O’Connor v. Harris, 81 N. C., 279; Morris v. Morris, 94 N. C., 613. The husband having actually reduced the chose in action into possession and invested it in the land without any special agreement to invest and hold for the benefit of the wife {Kirkpatrick v. Holmes, 108 N. C., 206), we concur in the conclusion of the learned Judge below that there is no resulting trust. The contention that the legacy did not vest in the husband because of the adverse claim of Letsey Coots to the property mentioned in the will (which was finally decided against her) is wholly untenable. The authority cited {Caffy v. Kelly, Bush. Eq., 48) applies to cases where, upon the marriage, chattel property of the wife is in the adverse possession of another. In such a case the wife has but a mere chose in action, which does not vest absolutely in the husband upon the marriage. 1 Bish. on Married Women, 71. This chose in action, however, like any other, becomes the qualified property of the husband upon the marriage, *274 and if, as in the present case, it is reduced into possession ^during the coverture the title to it relates to the marriage and not to the time of its actual reduction into possession. O’Connor v. Harris, supra. The objection to the authority of the Judge to determine the case under the agreement of counsel after the adjournment of the Court, is also without merit. Harrell v. Peebles, 79 N. C., 26; Shackleford v. Miller, 91 N. C., 181. And we do not see how, under the circumstances, his Honor could have refused to proceed to judgment unless a motion had been distinctly made (which was not done) for a reopening of the case upon the ground of newly discovered testimony. This, however, would have been purely a matter of discretion and not reviewable by this Court, unless the Court had explicitly declined to entertain such motion on the ground of a want of power. Brown v. Mitchell, 102 N C., 347. In conclusion, we will observe that we have construed the will and the rights of the husband thereunder according to the principles of the English common law and equity, as expounded by the decisions of this Court and other authorities whose views are adopted by us. These, in the- absence, of proof that a different law or construction of the law prevails in Tennessee, must govern this case. Worrell v. Vinson, 5 Jones, 91; Cade v. Davis, 96 N. C., 139. The judgment is Affirmed.