Phifer v. . Giles

Allen, J., after stating the case: When this case was before us on the former appeal, it was decided, upon tbe allegations then made, that the petitioner ivas not entitled to dower, as it was not made to appear that any part of tbe trusts declared in tbe will of M. M. Pbifer bad been executed, or that any part of tbe land devised in said will remained unsold, or that it was unnecessary to sell all of said land, or that after tbe payment of tbe debts and charges there would be any surplus. *147 It was also intimated tbat tbe trusts declared in said will were active trusts, and tbat a construction of tbe will was permissible to tbe effect tbat it was tbe intention of tbe testatrix to convert tbe realty to personalty, and tbat in either event tbe petitioner -would not be entitled to dower; but tbe Court refrained from passing' finally upon these questions, as tbe pleadings then stood. Tbe amended petition presents a new case for our consideration, and if its allegations are true, which we must assume in reviewing a judgment sustaining a demurrer to it, it is doubtful if there has been a convei’sion, as to tbe land remaining unsold after tbe payment of tbe debts and tbe charges -for equality among tbe children, and if there was such conversion, tbe facts alleged, undisputed and without explanation, would be evidence of a reconversion. Tbe petitioner now alleges in substance tbat tbe debts and charges for equality, provided for in tbe will of M. M. Phifer, have been paid; tbat a sale of tbe land was unnecessary; tbat although more than thirty years have elapsed, a large part of tbe land remains unsold; tbat tbe beneficiaries under tbe will have elected to take tbe property as realty, and tbat her husband was seized in fee of an undivided one-seventh of tbe land remaining unsold. These allegations are admitted 'by tbe demurrer, and must be construed liberally, and if they disclose grounds for relief, although imperfectly alleged, tbe demurrer must be overruled. Brewer v. Wynne, 154 N. C., 472. Tbe 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 tbat tbe testatrix thought it would be necessary to sell tbe whole, and tbat she disposed of it for tbat purpose, which would be a conversion. Ford v. Ford, 2 Am. St. Rep., 124; Lent v. Howard, 89 N. Y., 169. *148 On the other band, there is no conversion unless the power to sell Is imperative, arising by express command or necessary implication (Mills v. Harris, 104 N. C., 626; Benbow v. Moore, 114 N. C., 272; Howard v. Perry, 15 Am. St. Rep., 124), and the power to sell conferred by the will is “to sell said property or any portion thereof,” which may mean that the testatrix intended that the trustees should sell so much of the property as might be necessary to pay debts and charges for equality among the children, and no more; in which event there would be a conversion of a part only (Smith v. McCrary, 38 N. C., 204; Scholle v. Scholle, 113 N. Y., 273; Cronise v. Horett, 47 Md., 436; Ray v. Monroe, 47 N. J. Eq., 359; Sheridan v. Sheridan, 136 Pa. St., 20; King v. King, 13 R. I., 507), and if the allegations of the amended petition are true, the debts and charges have been paid, and much of the land remains unsold. If, however, it should be held that a conversion has taken place, the specific facts alleged, considered in connection with the allegation of the petitioner that her husband was seized in fee of an undivided one-seventh interest in the land remaining unsold, if true, would amount to an allegation of a reconversion. It is alleged that R. S. .Phifer, the husband, conveyed his interest in the land, not in the fund, for the benefit of the other children of M. M. Phifer, in 1881, without the joinder of the petitioner, and that a large part of the land has remained unsold for more than thirty years, and that it has been divided as land among said children. The doctrine of conversion and reconversiones clearly stated by Justice Hoke in Duckworth v. Jordan, 138 N. C., 525, and he there says, with reference to the latter: “This reconversion can be effected where all the parties, beneficially interested in the property, by some explicit and binding action, direct that no actual conversion shall take place, and elect to take the property in its original form. ... In devises of the kind we are now considering, where land is directed to be sold and the proceeds divided, in order to a valid election all the interests must concur and all must be bound. If the beneficiaries are all sui juris, such election can be made by deed in which all join, or by answer expressly stating that the parties desire to hold *149 tlie land as it is, or this may be done partly by deed and partly by answer (and there are other methods), but all must concur by some action that will bind them.” It will be noted that, upon the facts in that case, the question was presented of a reconversion by deed or answer, but the Court said “there are other methods.” Mr. Pomeroy, in his work on Equity Jurisprudence, vol. 3, sec. 1175, says: “By reconversion is meant that ‘notional or imaginary process by which a prior constructive conversion is annulled and taken away, and the constructively converted property is restored, in contemplation of a court of equity, to its original actual quality.’ . The rationale of this doctrine is clearly found in the right which every absolute owner or donee has to dispense with or forbid the execution of any trust in the performance of which he alone is interested. Reconversion is the result of an election expressly made or inferred by' a court of equity. It depends wholly upon the right of election held by the person entitled to the property to choose whether he will take the property in its converted condition or in its original and unconverted form”; and again in section 1177: “It being assumed that the party entitled to the property has the capacity to elect to receive it in its unconverted form, and thus to effect a reconversion, the further question remains, how such election must or may be made. An express declaration of the intention in language is always sufficient, but is not necessary. An election may be inferred from acts or writings. Any act or writing which shows an unequivocal intention to possess the property in its actual state and condition will amount to a valid election.”' It appears, therefore, that there is a reconversion when the party or parties, entitled to the property as converted, elect to take it in its original form, and that this election may be inferred from acts or conduct which manifest an unequivocal intention to do so. Harcourt v. Seymour, 42 Eng. Ch., 45; In re Davidson, 11 Ch. Div., 350. Many expressions are to be found in the reported cases, as to the conduct which is evidence of an intention to reconvert. It is said in Bradish v. Gee, 1 Amb., 229, that very slight evidence of intention by acts done is sufficient; in Putteney v. *150 Darlington, 1 Br. Ch. R., 213, that circumstances of demeanor, even tbougb slight, will do; in Wheldale v. Partridge, 8 Ves., 235, that the slightest act would do; in Van v. Barnett, 19 Ves., 108, that a slight circumstance is sufficient; in Fluker v. Gordon, 17 Bev., 434, that slight cireiunstances are sufficient; in Prentice v. Underwood, 79 N. Y., 478, that a slight expression of intention will do; and in Burr v. Sim, 29 A. D., 525, that holding-possession for one year is entitled to some weight. Also, it has been held that a reconversion will bd inferred from an uninterrupted possession of the property in its original form and the receipt of the rents for sixteen years (Greesbach v. Freemantle, 17 Beav., 318); from a possession for twenty-one years (Stuck v. Mackey, 4 W. and S., 196) ; from advising with an attorney as to the right to elect to take as land, and retaining possession of the title deeds (Davis v. Ashford, 38 Eng. Ch., 44); from an execution of a deed (Beal v. Stehley, 21 Pa. St., 376). In the last case cited land was devised with power to sell and to divide the proceeds between three persons, two of whom conveyed their interest in the land to the third, and it was held that the making of the deed by the two was an election by them to take as land, and that the acceptance of the deed by the other was an election by him. We have thought it necessary to say this much on the question presented by the record, to show the difference between the case on the former appeal and as now constituted; but the rights of the iiarties cannot be finally determined until the facts are ascertained, and to that end the demurrer is overruled, with leave to answer. Reversed.