#### *Tazewell and Others v. Smith’s Administrator.

February, 1823.

Equitable Conversion — Vested Estate.* — When a testator directs his real estate to be sold, and the money arising from such sale to be paid to particular persons, the interest of the legatees is a vested one, although the will may give a discretion to the executor, as to the time of selling the estate.

Same — Same.—The principle will he the same, whether the estate devised to be sold, be an estate in possession, or only a remainder.

Same — Same.—The death of the devisee or legatee before the sale, will not defeat the interest, unless there is some provision in the will to that effect. The interest in the proceeds of the sale is as much a vested interest, as if the land itself had been immediately and directly devised.

Same — Election.†—Land directed to be sold is considered as money, unless an election be made to take it as land, by some person having a right to elect.

Parties — Heir at Law. — Under what circumstances the heir at law ought to be made a party.

This was a suit brought in the Richmond chancery court, by Larkin Smith, and Sophia Ann, his wife, against Littleton W. Tazewell, executor of .Benjamin Taliaferro, deceased, William McCandlish, and Mary Nelson, his wife, and others, defendants. The case disclosed by the bill, answers and exhibits, was as follows:

Richard Taliaferro, by his will, devised two tracts of land in Brunswick and Dinwiddic, to his wife, Rebecca, during her widowhood; and at her death or marriage, to Benjamin and Robert Taliaferro, his sons, equally to be divided between them.

Benjamin Taliaferro intermarried with the complainant, Sophia Ann, and died leaving two infant, children, Richard Henry and Henry T. Taliaferro, leaving a will, by which he appointed the complainant, Sophia, and Littleton W. Tazewell, his executors; the latter of whom alone qualified, and took upon himself the office of executor.

The will of Benjamin Taliaferro, after providing for his widow, the complainant Sophia, directs, that all the *rest and residue of his estate, “of what nature or kind soever, whether in possession, remainder, or reversioner,” may be sold by his executors, or such of them- as shall qualify, “at any time, and in any manner he or they shall think proper. And it is my will and desire, that the money arising from the sale of my property above spoken of (after payment of my just debts,) may be laid out by my executors, or such of them as shall act, in any manner they may think most advisable, so as to produce a certain annual income; and it is my will and desire, that this annual income may be equally divided between my two sons, Richard Henry and *118Henry Taliaferro, each and every year, until either of my said sons attains the age of twenty-one years, or marries: at which time, I desire that one moiety of the principal may be assigned and transferred to him, in like manner as the other moiety is giyen to his brother; but should either of my said sons die before he attains the age of twenty-one, or marries, then it is my will and desire, that the other should succeed to his proportion.”

Richard Henry and Henry Taliaferro, both died under the age of twenty-one, and unmarried, and during the life of the aforesaid Rebecca Taliaferro, the widow of Richard Taliaferro, and possessed of the estate in question, under the will of her husband.

Rebecca Taliaferro died shortly before the institution of this suit, without having married a - second time, and consequently, withouf .having forfeited the estate, under the will of her husband, Richard Taliaferro.

No partition was ever made of the two tracts of land aforesaid, between the said Benjamin and his brother Robert, or their heirs; nor did Littleton W. Tazewell, the executor of Benjamin Taliaferro, ever execute the power vested in him by the will of the said Benjamin, of selling his estate in the lands aforesaid.

Sophia Ann Taliaferro intermarried with Larkin Smith; and contends that she is entitled to all the interest which *the said Henry and Richard Taliaferro had in the estate of the said Benjamin Taliaferro; as the mother of the said Henry and Richard, and the heir at law of the survivor of them: that the complainants being the only persons entitled to the proceeds of the said sale, are at liberty to discharge the executor from the necessity of selling, and. may elect to take the land itself. This suit was, therefore^ brought against the executor and heirs of Benjamin Taliaferro, to compel the said executor to deliver up the said estate to the complainants, and to release all his right, title and interest in the same.

Littleton W. Tazewell, admits the allegation of the bill, and says that the reason why he has not exercised his power of selling is, that during the life of Rebecca Taliaferro, (who had but recently died,) he supposed that no sale of the reversion 'of an undivided property, could be made without an immense sacrifice; and that since the termination of the life estate, the right to' the property being contested, he was unwilling to do any act which might affect the interest of either party. He professes his willingness either to make sale of the land, or to surrender his interest in it, in any manner or to any person that the court might direct.

The heirs of the said Benjamin Taliaferro also answered, and contended, that Richard and Henry Taliaferro _ received .the estate by purchase from their father, and therefore the real estate must descend to their paternal kindred: that the land devised, must be considered as real and not personal estate in a court of equity, under the circumstances of this case; and that it was purchased, not from the executor, but directly from Benjamin Taliaferro himself.

In the progress of the cause, the suit abated as to the complainant Sophia Ann Smith, by her death, and was revived in the name of Larkin Smith, her administrator; and Larkin Smith having also died, it ivas revived in the name of William Brooke, administrator de bonis non of Ann Sophia Smith deceased.

*The chancellor decided, that upon the principle of equity, things agreed to be done, are to be considered as done; the real estate directed to be sold by the will, ought to be considered personal estate: that the widow of Benjamin Taliaferro having survived her two sons, though she died in the life-time of her last husband, her personal representative, the plaintiff is entitled to the remaining proceeds of the sales thereof, when the same shall be made, and to the profits which have accrued or may accrue under the sales, first for the benefit of her creditors, and then to the use of those claiming under Larkin Smith, the last husband. And that, for these purposes, partitions and sales of the land ought to be made, and an account taken of their profits, as also of the administration of the estate of the said Benjamin Taliaferro. He therefore decreed, that certain commissioners should make partition of the said lands: that an account should be rendered of the rents and profits of the said lands, as well as of the administration of Littleton W. Tazew’ell, upon the estate of his testator.

From this interlocutory decree, the defendants obtained an appeal, by petition to the chancellor.

Leigh and D. Robertson, for the appellants.

Stanard and .Wickham, for the appellee.

For the appellants, it was admitted, as a general rule, that land, directed to be sold, will, in equity, be considered as money; but, in questions between the heir and legatee, the character of personalty must be definitively fixed by the testator, (a) The circumstances which will be relied on to prove that the character of personal estate is definitively fixed on the land devised by this will to be sold, are: 1st. That the money arising from the sale, is *to be laid out, so as to' produce a certain annual income. But, such an income may arise, as well from real as personal estate. 2d. The word principal, may be supposed to indicate personal .estate only. This construction, however, would be much too narrow, because it would' exclude an investiture in many species of stock, which are declared by law to be real estate. 3. As little weight is to be attached to the expressions, assign and transfer; for, these are equally applicable to real and personal estate; and, even if they were more appropriate to «the latter, it should be remembered, that the words *oí*a testator ought not to be examined with technical severity. 4. It may be said, that the mixture of real and personal estate in *119the will, gives the character of personalty to the whole mass. But, in the cases of Durour v. Motteux,(b) and Ackroyd v. Smithson,(c) this circumstance was not allcnved to have any weight.

But, the chief argument is, that the will dees not direct the land to be sold positively, but only says it may be done. The executor has a discretion to sell the land or not, as he may think proper; and, therefore, it is not a conversion of the real estate into personal out and out, which al! the authorities consider requisite.

If all these positions are incorrect, still the only purpose of the sale having failed, by the death of the children before the condition of the estate was changed, the real estate must descend to the heir. This doctrine is supported by the cases of Cruse v. Barley,(d) Chitty v. Parker,(e) and Berry v. Usher.(f) The legacy had not vested at the time of the death of the children ;(g) nor can it be considered as a conversion out and out.(h)

Tor the appellee, it was said, that the principle of equity being admitted, that lands directed to be sold will be considered **as money, the appellants must prove, either that this will does not afford a case for the application of the principle; or, that by some subsequent event, the rule has ceased to operate. Both grounds are taken, and will be examined.

1. As to the discretion given to the executor to sell or not, as he thinks proper, the will gives no discretion, except as to the time and manner of selling the property, but docs not leave it to his pleasure to refrain from selling altogether. Circumstances might exist, which would render it inexpedient for the testator to fix any definite time or manner of selling, while, at the same time, it was his determination that the property should be sold. The testator evidently intended that the property should be sold before his sons arrived at twenty-one; because, he requires that the proceeds shall be laid out in such manner, as to produce a certain annual income, to le equally divided between his two sons, until either of them shall attain the age of twenty-one years, or marries. The word may, in this case, does not imply discretion, but is used imperatively.

The devise is of a mixed subject of real and personal property, both of which are to be applied to the payment of debts, which shall be so invested as to produce a certain annual income. One moiety of the principal is to be assigned and transferred to each of the children. All these terms are peculiarly applicable to personal estate. The case of Doughty v. Bull,(i) shews that discretionary words in a will, may be considered as imperative. It is a rule of equity, that the character given to property by the testator is to be retained, unless the legatee make his election to take it in a different character.(j)

2. It is said, that the purposes of the will having failed by the death of the children, the land will remain in its ^original condition of real property. But, the purposes of the will have not failed. The children survived the testator, and their legacy was a vested one. The failure contemplated by the law, is a failure to vest, or where there is a lapse of the legacy. In every case of a vested legacy, the character impressed by the testator on the property, attaches immediately, and can only be altered by the election of a person competent to make an election.(k) The authorities cited by the counsel for the appellants, to prove that this legacy had not vested, have no application. There is no case where a personal subject is given at a particular time, and interest in the mean time, the legacy is not considered as vested. (l)

*

Equitable Conversion — Vested Estate. — When a testator directs his real estate to be sold, and the money arising from snch sale to be paid to particular persons, the interest of the legatees is a vested one, although the will may give a discretion to the executor as to the time of selling the estate. As so holding, the principal case is cited in Bell v. Humphrey, 8 W. Va. 19. And in Woodward v. Woodward, 28 W. Va. 208, it is said; “Where a will directs land to be sold at the discretion of trustees or executors, or upon the happening of a contingency, an equitable conversion takes place at the time of the sale or the happening of the contingency. Where in such case, though the will gives the executors a discretion as to the time of selling the land and directs the money arising from the sale to be paid to particular persons, the interest of the legatee in the proceeds of the land is a vested one. The principle will be the same, whether the estate devised to be sold, be an estate in possession or only in remainder. *(Tazewell v. Smith,*1 *Hand.*313; Washington v. Abraham, 6 Gratt. 66; Cochran v. Paris, 11 Gratt. 348.) And. it seems to me, in snch case, it is immaterial whether the estate in the lands was vested or contingent, if the conversion authorized by the will is actually made. In such case the estate will also be vested, unless the will shows that it was not so intended. (Hinton v. Milburn, 23 W. Va. 171; Corbin v. Mills, 19 Gratt. 438, 472.)”

†

Same — Effect.—it is a familiar doctrine of a court of eqnity that land articled or devised to be sold and converted into money, or money articled or bequeathed to be invested in land shall assume the very character of the property Into which it is to be converted; and, if the new form thus impressed upon it remain unchanged, it will pass to such of the representatives of those who take under the will as would be entitled to it as property of the character into which it is to be converted. Harcum v. Hudnall, 14 Gratt. 374, citing principal case as authority. To the same effect, the principal case is cited in Effinger v. Hall, 81 Va. 107; Lynch v. Spicer (W. Va.), 44 S. E. Rep. 256. And, in Zane v. Sawtell, 11 W. Va. 48. it is said: “This isa sequence of the familiar principle, that a court of equity regards lands deeded or devised to be sold and converted into money, or money either articled or bequeathed to be invested in land as having the character of property into which it is to be converted, though the actual conversion by sale or purchase as the case may be, has not been actually effected. Harcum v. Hudnall, 14 Gratt. 369; Washington v. Abraham, 6 Gratt. 66; *Tazewell v. Smith,*1 *Rand.*315; Pratt v. Taliaferro, 3 Leigh 419; Morrow v. Brenizer. 2 Rawle 185; Allison v. Wilson, 13 S. & R. 330; Edwards and wife v. Countess of Warwick, 2 P. Wms. 171-175 n; Cruise *v.*Barley, 3 P. Wms. 22 n, 1; Craig v. Leslie, 3 Wheat. R. 563.”

All this rests upon the familiar principle that equity regards that as done which is directed or agreed to be done, where nothing has intervened which ought to prevent a performance. Carr v. Branch, 85 Va. 602. 8 S. E. Rep. 476, citing principal case as authority.

Thus, to have the effect in equity of a conversion, the direction to sell must not be merely optional. It must be imperative. Ropp v. Minor, 33 Gratt. 110, citing principal case.

See further, monographic *note*on “Conversion and Reconversion” appended to Vaughan v. Jones, 23 Gratt. 444.

(a)

 2 Ves. jun. Oxenden v. Lord Compton; Do. 170, 183, Walker v. Denne; 5 Ves. jun. 388, Wheldale v. Partridge, do. 396.

(b)

 1 Ves. senr. 320.

(c)

 1 Bro. OS. Gas. 500. 510, 511.

(d)

 3 P. Will. 22. ana Goxe’s note.

(e)

 2Ves. jun. 271.

(f)

 11 Ves. iun. 87.

(g)

 Duke of Chandos v. Talbot, 2 P. Will. 612, and Coxe's note. Co. Litt. 237. a. Hargrave's note.

(h)

 8 Ves. jun. 235; *2*Bro. CS. Cas. 589.

(i)

 2 P. Will. 320.

(j)

 Biddulph v. Biddulph. 12 Ves. jun. 161; Ashby v. Palmer, 1 Merivale’s Rep. 296.

(k)

 2 Maddock. 108.

(l)

 Hewitt v. Wright, 1 Bro. Ch. Cas. p. 90.

JUDGE CABEEL,

February 17. — delivered the opinion cf the court.*

The first question which presents itself in this case, admitting that all necessary parties are before the court, is, whether the interest intended by the will of Benjamin Taliaferro for his two sons, Richard Henry, and Henry Taliaferro, were vested and continuing interests, at the time of their deaths.

This question presents no difficulty. It is clearly a vested interest, unless a different result be produced by the testator having left the time of selling, to the discretion of the executor. In every instance of a sale by an executor, some time must, of necessity, elapse between the death of the testator, and the sale; and something is almost invariably left to the discretion of the executor, as to the time of selling. Yet that makes no difference where, as in this case, the direction to sell is imperative. It has never been doubted, that the devisee or legatee, for whose benefit a sale is thus directed, takes by the will, an immediate vested interest; nor has it ever been held, that the death of the devisee or legatee before the sale, defeated that interest, unless there was some provision in the will, to that effect. E’nder such circumstances, the interest irx the proceeds of the sale, is as much a vested interest, as if the land itself had been immediately and directly devised to the devisee. The circumstance in this case, that the testator had only a remainder in the land, expectant on the death of his mother, will not vary the construction, in this particular, which ought to be given to the will. He was well informed of his interest in this land, and yet he expressly subjects to sale, all his estate whether in possession, remainder or reversion. He may have been aware, that circumstances might, by possibility, render it essential to his children, that the sale should be made, before the life-estate might fall in; and he very prudently left the time of the sale, to the discretion of the executors.

*120The interests, therefore, intended for the children of the said Benjamin Taliaferro, vested at his death; and there being nothing in the will to defeat them, they were continuing interests at the deaths of the children.

It becomes important to enquire, in the next place, what was the nature and character of those interests.

It is an established principle, “that money directed to be employed 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 which they are directed to be converted.” The English reporters abound with cases upon this subject; and there is no part of the law more firmly established, or better understood. The important question in such cases is, whether the character of land or money is definitively and imperatively affixed, by the will, to the property; for, the character thus impressed upon it, will remain so impressed, until some person having a right to elect, elects to take it in its original character. Ashby v. Palmer.(m) Band, therefore, thus impressed with the character of money, will, until election be made to take it as land, pass as money, although it has not been, actually converted into money. The counsel for the appellants relied upon the' principle laid down, in Walker v. Denne,(n) that the'property will pass according to the state in whicji .it happens to be at the death of the person from whom it is claimed. But, that principle has been repeatedly overruled. Wheldale v. Partridge;(o) Biddulph v. Biddulph;(p) Kirkman v. Miles;(q) Ashby v. Palmer.(r) The other cases, relied on by the counsel for the appellants, have no application. Jn all of these, there was, from some cause or other, a resulting trust, in whole or in part, for the heir at law of the testator. But, in the case before us, the conversion into money is imperative, “to every intent, out and out:” and the whole proceeds of sale, after payment of 'debts, are given, as personal property, to ■ the two sons of the testator; and it is to them,.or the survivor of'them, that the succession must now be made. There is then no foundation whatever for any claim on the part of the heirs at law of the testator.

If there were no persons other than the present parties, who might claim an interest in this controversy, the court, pursuing the principles above declared, would affirm the decree of the chancellor.

But, it appears that after the death of the two sons of the testator, Benjamin Taliaferro, their motin-r, to whom the property in controversy had passed at the death of the survivor of them, as his next of kin, intermarried with Parkin Smith; and that the said Smith and his wife instituted this suit, as the only persons interested in the sale of the land, claiming, by their bill, to discharge the executor from the necessity of selling, and electing to take the land itself. If this election had any operation in favor *of the wife, in restoring the land to its original character, as land, it may become important, to her heirs at law, as she died before the termination cf the suit, and before the land was reduced to possession by the husband, to inquire whether her rights therein descended to them. On this point, the court expresses no impression even, farther than to say, that it is a subject on which the heirs at law ought to have an opportunity to be heard before a final decree. The decree is therefore reversed, with costs to the. appellees, as having substantially prevailed; and the cause is remanded to the court of chancery, with directions to make the heirs at law of Mrs. Smith, parties.

*

 Judge Bkooke did not sit in this canse.

(m)

 1 Merlvale, 296 ; 2 Madclock, 108, 9, 10; and tile cases there cited.

(n)

 2Vesey, 170.

(o)

 8'Ves. 227.

(p)

 12 Ves. 161.

(q)

 13 Ves. 338.

(r)

 1 Merivale, '296.