Woodward v. . Ball

Adams, J. Ey equitable conversion is meant a change of property from real into personal, or from personal into real, not actually taking place, but presumed to exist only by construction or intendment of equity. Bispham’s Prin. Eq., sec. 307; Duckworth v. Jordan, 138 N. C., 521; McIver v. McKinney, 184 N. C., 393. Tbe appellant does not deny that tbe testatrix directed an equitable conversion into personalty of tbe bouse and lot on West Edenton Street; but she contends that tbe conversion was limited' to the purpose of paying tbe specific bequests set forth in the third item of tbe will and that tbe portion of tbe fund remaining after satisfying these legacies should be treated as real estate subject to devolution as prescribed by tbe fourth canon of descents. She insists that as tbe conversion was intended for a specific purpose and this purpose was fulfilled there was a resulting trust in tbe surplus of tbe fund which passed to tbe heir as realty. But this principle does not apply when a contrary purpose is clearly indicated by the devise. After discussing tbe English doctrine Bispbam says: “In tbe United States tbe rule under consideration has not received a construction so favorable to tbe heir. In Craig v. Leslie it was said to be settled, 'that, if tbe intent of tbe testator appears to have been to stamp upon tbe proceeds of tbe land described to be sold tbe quality of personalty, not only to subserve tbe particular purposes of tbe will, but to all intents, tbe claim of tbe heir at law to a resulting trust is defeated, and tbe estate is considered to .be personal.’ It was accordingly held that tbe blending of tbe proceeds of tbe realty with tbe personalty, so as to form a common fund, for all tbe purposes of tbe will, though-it should happen that some of them fail, will render tbe conversion absolute.” Prin. of Eq., sec. 318. This Court applied tbe principle in Phifer v. Giles, 159 N. C., 143, in which Allen, J., said: “The will of Mrs. Phifer bequeaths and devises personal and real property, in trust, with power to sell, without making any distinction between tbe two kinds of property, which is evidence of an intention to convert tbe whole to personalty (Burr v. Sim, 29 A. D., 52), and it directs tbe application of tbe proceeds, which indicates a purpose for all to be sold. Tbe general scope of tbe will, examined by itself and without reference to tbe facts now alleged, suggests that tbe testatrix thought it would be necessary to sell tbe whole, and that she *508 disposed of it for that purpose, wbicb would be a conversion. Ford v. Ford, 2 Am. St., 124; Lent v. Howard, 89 N. Y., 169.” A careful consideration of tbe devise in question convinces us tbat tbe testatrix intended to effect a conversion of tbe' property for tbe purpose of distributing tbe proceeds among ber next of kin botb on ber father’s side and on ber mother’s. Sbe directed tbat ber debts be collected, tbat tbe lot be sold and if a surplus should remain over and above tbe payment of debts such surplus should be distributed among ber legatees. It was ber obvious purpose to dispose of tbe 'entire proceeds of tbe sale as personal property; for sbe manifestly did not contemplate tbe disposition of any part of tbe surplus as real estate. Tbe judgment is Affirmed.