#### Heckstall and wife v. Powell.

From Bertie.

The act giving power to Courts of Equity to order sales of real estate for the purpose of partition, directs the proceeds to which infants are entitled, to be secured to such infant or his *real*representatives. Hence such share of the proceeds is to be considered as real estate, and (if the infant die before arriving at age) the heir at law will succeed to it, and not the personal representative. But if the infant arrive at full age and then die, whether the heir at law will be en» titled, *quere?*

The bill set forth, that the mother of Mrs. *Heckstatl*had died intestate, (leaving surviving her her second husband, *Samuel Powell,)*seised and possessed of certain land in Bertie county; that her heirs at law were Mrs. *Ileckst'all,*the child of her first marriage, and *John Powell*and *Miles Powell,*children of her second marriage; that afterwards *Samuel Powell*died; when a bill was filed in equity by Mrs. *Meckstalí*and *John*and *Miles Powell,*to sell the land of their mother for the purpose of division; that a sale was decreed, which took place, and was afterwards confirmed by the Court; that at the time of the sale and final decree, *John*and *Miles Powell*were, infants, and the defendant was appointed their guardian, and as such received two thirds of the purchase money of the land aforesaid; that *John*and *Miles*were since both *217dead, without issue, leaving Mrs. *Heckstall*their heir at law, who claimed by the bill the two thirds of tiie money arising from the sale of the land.

The bill farther charged, that *John*and *Miles*left a large personal estate, and the complainant, *William Heckstall,*as their administrator, claimed the same.

The answer of *Powell*admitted, that as guardian he had received two thirds of the price of the land; and as to the other property which it was alleged had belonged to his wards, he referred to his accounts as guardian, making them part of his answer, whereby it appeared that the estates of *John*and *Miles*were indebted to him.

The answer also stated, that *John*died first, and then *Miles,*after the defendant had received the purchase money of the land, and that *Miles*left, at his death, besides Mrs. *Heckstall,*twro other sisters, *Nancy*and *Patsy,*on the father’s side, who are equally entitled with Mrs. *Heck-stall,*and arc not parties to the bill.

The matters of account were referred, in the Court below, to the master, and on his report, Daktei, Judge, below, decreed, that the complainants should receive of defendant two thirds of the amount for which the land sold, it being considered by the Court as land; and that the defendant should retain the interest made on the money, as profits of the land, in part payment of his claim for advancements made to *John*and *Miles*as their guardian, and that each party pay his own costs.

From this decree defendant appealed.

*L. Martin,*for complainants. —

By the act of 1812, *ch.*847". which authorizes Courts of Equity to sell real estate to make partition, it is required in all cases, that when any of the parties be an infant, *feme covert,*or *non com. pos mentis,*imprisoned, or beyond the limits of this state, that “ it shall be the duty of the Court to direct the part of the proceeds of the sale to which such person is entitled, to be so invested or settled, that the same shall be *218effectually secured unto the person so entitled, or his oi her *real*representatives.

The act of 1818, *ch.*982. *sec.*1. directs the appropriation of the money to he made in the same manner, as far as respects this case, when the land is sold for public purposes.

Although tiie defendant sets up an account in this case against his wards, it makes no difference; because the fund being real estate, he cannot hold it from the heirs; and because *Heckstall,*the complainant, is the administrator of both the wards, and avers that he lias assets to more than the amount due the defendant, which is not denied.

Tayiok, Chief Justice,

delivered the opinion of the Court.

According to the directions of the act relative to the sale of lands for the sake of partition, the proceeds of an infant’s share shall be so invested, or settled, that the same shall be effectually secured unto the person so entitled, or his or her real representative. (1812, *ch. 847.)*

If *John*and *Miles Powell*had died intestate before the sale, *Elizabeth,*the plaintiff’s wife, would have been their heir at law, in exclusion of their paternal half sisters, conformably to the fourth rule of descent established by the act of 1808. It is equally clear, that if either had died under age, after the sale, the money produced by the sale must have been considered as land, and therefore the heir at law would have succeeded to it. But it is not so certain, that if one or both had arrived at full age, and then died, that his or their share of the money would then have been considered as land, and be descendible accordingly. It is stated in the case, that one died after he came of age, but it is stated incidentally in the defendant’s answer, and for a purpose altogether unconnected with the principal question.

Now the decree considers the whole sum as real estate, *219in which it is erroneous, and must he reversed. The cause must be remanded for farther proceedings, and es-penally for the purpose of ascertaining the ages of *John*and *Miles Powell*at the time of their respective deaths,