Leadenham's, Ex'r v. Nicholson

Dorsey, J. at this term delivered the opinion of the Court In May 1816, Thomas and Joseph Williams, Gassaway Knighton, and Sarah his wife, and Edward Leadenham, and Mary his wife, exhibited their bill in chancery against Elizabeth Ann Ball, setting forth that a certain Joseph Williams died intestate and seized of about 175 acres of land in AnneArundel county, leaving the said complainants, Thomas, Joseph, Mary and Sarah, and a certain Ann Bird, the wife of John Bird, his children, and a grandson named John Ball, the son of a deceased daughter Elizabeth, his heirs, to whom the said land descended. That John Bird died intestate and without issue; and that John Ball had also departed this life, leaving a child named Elizabeth Ann Ball, a minor, to whom his interest in said land descended. The bill further stated, that the land could not be divided beneficially to all concerned, and prayed for a decree for sale or division. In August 1816 the answer of the minor was filed, assenting to a sale of the land, and on the 31st of the same month, a decree for the sale passed, in the usual form, on a credit of twelve months, the purchaser to give bond with security, bearing interest. In January 1817, the trustee reported the sale of the land in the preceding November for $7350, to Thomas Williams, who had given bond for the purchase money agreeably to the decree. Which report was finally ratified by the chancellor m — 276 — dMarch 1817. In September 1818, the auditor stated the account, &c. and distributed the proceeds of sale, after deducting the expenses, into five shares of $1440 91 each, to Thomas Williams, Joseph Williams, Knighton and wife, Leadenham -and wife, and Elizabeth Jlnne Ball; on which account no order appears to have been taken by the chancellor. In November 1820, the auditor stated a second account, distributing $300© received of the proceeds of sale, among 1he same distributees named in his first account, which was paid to them accordingly. On the first of June 1824, the auditor stated a third account^ distributing in like manner $5185 78, except that of Leaden-ham and wife’s proportion $120 was allowed to John Leeds Kerr, on an order drawn by Edward Leadenham on the 27th of January 1820. Which third account was, in common form ■ratified by the chancellor on the 7th of June 1824, and on the same day he rescinded the order of ratification as far as respects the distributive share of Leadenham and wife. On the 16th of the ensuing July, Noah Leadenham Sled his petition in the court of chancery, setting forth all the proceedings in that court under the bill filed as aforementioned, and that judgments were recovered by the trustee against the principal and his securities, on the bond given for the purchase money of the land in 1819, and that previously thereto Thomas Williams, the purchaser, transferred to Joseph and James Nicholson, his securities, all his right of purchase in said land, and released t© them his right to one-fifth part of the said purchase money. That Joseph and James Nicholson, to secure the payment of said purchase money to the trustee, assigned to him the single fell of a certain Walter Claggett, for $6453, on which the trustee recovered judgment in 1822, and upon a fieri facias issued thereon, received $5185 78, the sum of money on the distribution of which the present controversy arises. The petition also stating and establishing by accompanying depositions that Mary Leadenham died in February 1821, and Edward Leadenham, her husband, in August following; the prayer of the petition was that the chancellor would pass an order directing the trustee to pay to the petitioner, as executor of Edward Leadenham, the amount to which Edward Leader^, hum was entitled; and for general relief. — 277 — The principal question in this cause, and that from the chancellor’s decision of which the present appeal hath originated, Is simply this — Does Mary Leadenham’s share of the aforesaid 05185 78 vest in the executor of her husband, or survive to her representatives? In the solution of this question, the first point to be examined is, what was the nature of Mary Leadenham’s interest in the fund in controversy, at the time of her death? Was it realty or was it personalty? If the former, then Edward Leadenham, never having had issue by his wife, had not even the shadow of a claim, and the fund descended to the heirs at law of the wife. This was the opinion of the chancellor. In support of which the counsel for the appellees have referred to many cases, arising under a well established rule in equity, that money directed to be laid out in land will, before investment, be considered as land; and land, directed to be sold and converted into money, will before a sale, be considered as money, and pass as such. The applicability of the authorities cited has not been discovered; this case not being embraced by either bra .ch of the rule. It is not money, ordered to be invested in land, but money arising from land sold; and is, therefore, free from the operation of the first part of the rule.. And if, contrary to the feet, it be conceded to be land to be converted into money, the latter part of the rule repudiates the idea of its being viewed as land, and stamps upon it a personal character. The case of Yohe vs Barnet’s Adm’r. 1 Binney, 358, referred to in the chancellor’s decretal order, is a very strong adjudication to prove that Mary Leadenham’s interest was merely personal. But this principle has been settled by this court in the case of The State use of Rogers vs Krebs, et al. Garnishees of Horne, 5 Harr. & Johns. 31, in which it became necessary to decido at what time a change took place in the nature of the seal estate of a feme covert sold by commissioners appointed under the act to direct descents. And after great deliberation it was adjudged, “that the mutation of her estate from real to personal may be determined to be complete, when the commissioners’ sale is ratified by the court, and the purchaser has complied with the terms of it, by paying the money, if the sale 1? for cash, or by giving bonds to the representative?, if the sale — 278 — is on a credit.” It is true this was a decision at law; but it violates no rule or principle of equity; nor does any sound reason appear why, in cases like the present, the same rule should not prevail in equity, which exists at law. We therefore disagree with the chancellor in considering Mary Leadenham’s share “as her land,” descending “to her heirs.” Nor can we admit that the determination of this cause must depend upon the effect which the proceedings of the court of chancery may have had in changing the nature of the estate of Mary. The appellant has no claim to it, whether it Be considered as real or as personal property. The interest of Mary, at the time of her death, is viewed by this court in the nature of an equitable chose in action, for the payment of which to husband and wife, or either of them, no order was passed by the chancellor; for the recovery of which nothing has been done to entitle the representatives of the husband to claim under the act of assembly, or otherwise; it therefore survives to the personal representatives of Mary JLeadenham, and not to her heirs at law, as decreed by the chancellor. To show the extent to which the rights of the husband are carried in a court of equity, the note to the case of Heygate vs Annesley, 3 Bro. Ch. Rep. 362, has been referred to, which note professing to give the decision in Forbes vs Phipps, 1 Eden, 302, states it to have been there decided, that “where a feme covert, being entitled to a share of the residue of a testator’s estate, upon a bill filed by another residuary legatee, to which she and her husband were defendants, a decree had been made for a sale of the estate and payment, Lord Northington held, that the share vested absolutely in the husband by the decree, and that the wife surviving was not entitled.” How the learned annotator, in extracting the principle of a decision reported by himself, could have so egregiously erred in his statement both of law and fact, it is difficult to conceive. The case of Forbes vs Phipps was not, (as it would appear to be by the above mentioned note,) a contest between the surviving wife and the representatives of the husband, but between the surviving husband and the representatives of the wife; and the decree was, according to all the authorities both — 279 — at law and in equity, that the surviving husband was absolutely entitled. The provisions of the act of assembly 1798, ch. 101, sub, eh. 5, s. 8, although introduced into the argument, can be of no avail to the appellant, as Edward Leadenham, after his wife’s death, neither reduced her chose in action into possession, nor obtained judgment thereon. Independently of this act of assembly the executor of the surviving husband has not a shadow of claim. ’Tis true a decree has passed, in the lifetime of the wife, for the sale of her land, in a cause to which she and her husband were parties. But that proceeding directs a sale of the property, and the proceeds to be brought into court. It professes not to ascertain the rights of the respective claimants; it makes no distribution; it awards no payment, either immediately or contingently, to husband and wife, or either of them; no such decree has passed as is equivalent to a judgment at law, which would vest the chose of the wife absolutely ia the surviving husband. If the decree had directed the proceeds of sale to be paid to the husband and wife, or the husband alone; or if the chancellor had made the usual order of ratification of the auditor’s statement, directing the trustee ta pay over accordingly, then would the representatives of the husband have been clearly entitled. But this has not been done. Several questions oí law, as to the form of proceeding, the regularity of the appeal, and the admissibility of testimony* were raised by the appellees, which our opinion on the main question renders it unnecessary to decide. As to that part of the litigated fund which was assigned to John Leeds Kerr, the allowance of which by the auditor was rejected by the chancellor, this court can make no decree, Kerr being no party before us. Nor are we authorised to reverse the chancellor’s decree as to the residue of that fund, the personal representatives of Mary Leadenham not appearing as appellants, and the executor of Edward Leadenham having no interest in the subject matter. We can therefore only do what the chancellor, according to our view of the case, ought to have done, with respect to the appellant’s petition — decree its dismissal, with costs. Decreed¡ that the appeal be dismiss — 280 — ed, and that the petition of the appellant in the court of chanefery be also dismissed, with costs, &e. APPEAL DISMISSED, &C,