#### MARTHA E. BATEMAN *against*CHARLES LATHAM, *administrator.*

The proceeds of land, sold for partition under the provisions of onr Act of Assembly, to which an infant is entitled, remain real estate until such infant comes of age and elects to take them as money.

The claim which a wife has against the administrator of her husband for money arising from the sale of her land which he had received, is a simple contract debt, and must be so treated in the course of administration.

Appeal from the Court of Equity of 'Washington County, Fall Term, 1856.

*36Maria Gregory, by the will of her father, Samuel Gregory, became seized in fee as a tenant in common with Frederick Gregory, Mackey Gregory, and Mary Gregory, as tenants in common of a tract of land lying in Chowan County. The said Maria Gregory intermarried- with Nathaniel J. Beasley, and died, leaving the plaintiff, Martha Elizabeth Beasley, her only child and heir-at-law, and the said Nathaniel J. Beasley became tenant by the curtesy to all the land, of which his wife, the said Martha, died seized. The said Martha Elizabeth, by her father and next friend, joined with the other tenants in common, in a petition to the Court of Equity of Chowan for the sale of the said land for the purpose of partition. A decree of sale was accordingly made, and the land sold, and, after paying the costs of the proceedings, there was paid into the office of the clerk and master of the said Court, the sum of one thousand dollars, as the separate share of the said Martha Elizabeth Beasley, subject to the life estate of Nathaniel J. Beasley as tenant by the curtesy.

At the August Term, 1836, the said Nathaniel J. Beasley became the guardian of his daughter, the said Martha Elizabeth, and, as such, entered into bond with sureties, and received the said sum of one thousand, dollars from the clerk and master in Equity of Chowan.

Martha Elizabeth Beasley intermarried with Andrew J. Bateman, in July 1851, and in October of the same year he* father, the said N. J. Beasley, died. Suit was then brought in the County Court of Chowan by plaintiff and her husband, for the money which N. J. Beasley had in his hands as plaintiff’s guardian, and a recovery had for the sum of one thous- and dollars, which was paid into the office of the said County Court by one of the sureties to the guardian-bond.

The bill alleges that it was agreed between the plaintiff and her husband, the said A. J. Bateman, that he should receive the said sum of money from the clerk’s office and invest it in property for her sole and separate use ; that he did receive it, and did invest four hundred and fifty dollars of the said sum in the purchase of a negro woman by the name of *37Amy, and lier child, and took for her the following instrument of writing, viz: *“*Received July 10th, 1853, of Andrew J. Bateman for Mrs. Elizabeth Bateman, four hundred and fifty dollars in the purchase of Amy and child.” Signed,

*“*BeRRY MEEKINS.”

This instrument was never proven or registered, but the slaves were delivered to her husband at the time of the sale ; and that her said husband frequently declared that he had purchased the said slaves with her money, and held them for her sole and separate use and benefit.

The bill further alleges that A. J. Bateman, her husband, died intestate on the 1st of July, 1855, and that the defendant, as administrator, took the slaves Amy and child into his possession, and sold the same against plaintiff’s wishes, as a part of his intestate’s estate for $1010. The prayer of the bill is, that the said administrator account and pay over to plaintiff the amount for which Amy and child were sold, also that he pay the balance of the thousand dollars which ,came to her husband’s hands, but which was not invested, out of the assets.

The answer of the administrator does not profess to know anything of the matters set forth in the bill, and insists that the allegations be proven. He answers, however, as to the assets in his hands, and avers that there are not more than enough to pay the judgment and bond creditors, and insists that if plaintiff has any equity she is upon the footing of simple contract creditors, and her claim will not be reached.

There were replication, commissions and proofs; also an agreement of counsel; filed as evidence in the cause, *“*that there are bond debts of defendant’s intestate sufficient to absorb the entire estate of the intestate in the hands of the administrator.”

The cause was set for hearing upon the bill, answer, exhibits, agreement of the parties and the proofs, and heard below, when a decree was made for the whole sum, for which Amy and child were sold, and for the $550 which had not been invested ; from which decree the defendant appealed.

*38
      *W. A. Moore,,*for plaintiff.

*Smith,*for defendant.

Battle, J.

The proceeds of land sold for partition under the provisions of the Revised Statutes, ch. 85, sec. *1,*(Revised Code, ch. 82, sec. 7,) to which an infant is entitled, remain real estate until he or she comes of age and elects to take them as money. *Scull*v. *Jernigan,*2 Dev. and Bat. Eq. 144; *Dudley*v. *Winfield,*Bus. Eq. 91. In the present case the plaintiff came of age before she married, but there is no testimony to show that she elected to take the proceeds of her land as money; on the contrary, it appears that her guardian had wasted them, and she and her husband were compelled to sue upon the guardian-bond for the purpose of recovering them. At the time when the amount recovered was received by her husband, she had no power, by her election, except upon her privy examination, to change the quality of the money from realty to personalty; because she was then under coverture. The money being hers, the slave in which her husband invested a portion of it became her property, still retaining, as between her and him, the quality of real estate. The identity of the money with which the slave was purchased and paid for, the testimony establishes beyond all doubt. Her right to follow the fund is a clear and well established principle of equity. See *Black*v. *Ray,*1 Dev. and Bat. Eq. 443, which cites *Ryall*v. *Ryall,*1 Atk. 59. The husband was entitled to the use of the slave during his life, but upon his death, the woman, and child which she had borne, belonged to the plaintiff, and she had the right to claim them from the defendant as the administrator of her husband. But, as he sold them, and has the proceeds in his hands, she may assent to the sale and demand the money. This, by her bill, she has done; and to that extent she lias a right to have, the decree, made in her favor in the Court below, affirmed. As to the residue of the money received by her husband from the proceeds of her land, and of which she cannot show the application by him., she has, indeed, a qlaim for it, against his es-*39fate, but it is only in the capacity of a simple contract creditor. *Benbury*v. Benbury, 2 Dev. and Bat. Eq. 235. The decree, therefore, so far as it adjudges that this claim has the dignity of a bond debt, must be reversed. It is admitted by the counsel on both sides that there are bond debts outstanding against the estate of the intestate, more than sufficient to absorb all the assets in the hands of the defendant as his administrator. The decree in this Court must, therefore, be reformed in accordance with this opinion.

The reversal of the decree, in part, entitles the defendant to the costs of this Court. *Harris v.*Lee, 1 Jones’ Rep. 225.

Pee Cuetam. ■ Decree accordingly.