#### G. A. Wilkins and Wife *vs.*John M. Taylor and others.

Testator directed his whole estate, real and personal, to be sold, and disposed of the proceeds. The will was adjudged void as to the personalty, because one of the subscribing witnesses was named as executor, and probate was refused: — ■ *Held,*that the will was altogether one of personalty — that, consequently, the whole was void; and, that the real estate, as well as the personal, passed to his heirs as intestate property.

Where testator directs his real estate to be sold, out and out, so as to be converted at all events into personalty, it is not a devise, but a bequest of personal property.

BEFORE JOHNSTON, OH., AT CHARLESTON, JUNE, 1846.

Johnston, Ch. The will of Henry Taylor was admitted to probate, upon proof in solemn form, by the Ordinary of Beaufort District. But upon an appeal from his judgment, the *292question came before the Court of Errors in May, 1845, when the judgment of the Ordinary was reversed, and it was decided that the will could not be admitted to probate. • After this decision, the letters testamentary which had been granted to John M. Taylor were revoked, and administration was granted to Peyton L. Wade. The original bill was filed against John P. Williamson, then acting executor, and Henry Taylor, the infant devisee, by Mrs. Taylor the widow. After his death, it w'as revived against John M. Taylor, who had then proved the will. After the revocation of his letters testamentary, and the marriage of the complainant with Mr. Wilkins, a supplemental bill was filed by Mr. and Mrs. Wilkins against John M. Taylor, Henry Taylor the infant, and Peyton L. Wade, administrator of Henry Taylor.

The bill claims an account of the real and pei-sonal estate, and a partition between the widow and infant, or in the alternative, one-third of the personal, and dower in the real estate. An order was made requiring the defendant John M. Taylor, to pay into Court, the amount admitted in his hands, and directing an account. The commissioner has made a report, to which exceptions are filed. The reference, however, was in anticipation of a hearing of the cause upon the merits.

The questions in issue are,

1st. As to intestacy.

2d. As to dower.

It was decided by the Court of Errors, that the executor is not a competent-attesting witness to prove the will; but it is not decided that he may not be a good witness in a question between the heir and devisee, and the authorities show that in such a case he is a competent witness. I shall, therefore, hold *293that the will of Henry Taylor is a good devise as to the real estate.

Supposing the will to be well executed as a devise of lands, Mrs. Wilkins claims the benefit of an intestacy in the Laurel Hill plantation, because the will was executed on the 24th of January, 1840, and the land was conveyed to him on the 30th of the same month. But the testator who had sold Laurel Hill in January, 1837, to William Maner and Benjamin Chairs, on a credit, had found himself unable to procure payment from them, and after the death of Chairs, had agreed to take back the place on certain conditions. This contract was made before the 24th of January, 1840, viz: on the 18th day of the same month; and the will, if duly executed to pass real estate, will operate as a good devise of the plantation. In case these questions are decided against her, the complainant, Mrs. Wilkins, claims her dower in the land. The will after giving the widow the interest of thirty thousand dollars during life and various legacies to other persons, directs all his estate to be sold, the purchase-money invested in stock in Savannah, and from the income allows maintenance for children during infancy, and gives the whole to the child or children on attaining twenty-one years: and it has been decided, that this will is not so executed as to pass the personal estate. It is rather a curious question whether the widow in such circumstances can take dower in the land. The authorities and precedents that are to be found respecting the defective execution of wills, are all cases where the will was valid as to the personal, but invalid as the real estate. But in this case, the will is good as to the real, and only, void as to the personal. It is argued for the widow, that dower is an estate created by the law, and, that it cannot be barred by the act of the husband. That this is not a case of satisfaction or election, because the will operates only on land, none of which is given to the widow. To this, two answers are given: First, that this will has been established as a valid testament in Georgia, and, that the widow does take the legacy given to *294her out of the assets in Georgia: Secondly, that by the Act of 1791, the widow is barred of her dower if she takes by intestacy. It is then urged in behalf of the widow, that the provision made by the will in this case is not inconsistent with dower. Without undertaking to answer all the objections that may be raised on the point, I shall decree against the right of dower. This brings us to the matter of the exceptions. The account to be taken in this case, is that of John M. Taylor, for the management of the estate before his letters testamentary were revoked, and administration granted to Peyton L. Wade. The exceptions raised two points:

1st. Whether the income shall be apportioned between the real and personal estate, and a third part of the personal allotted to the widow — or whether the personal estate shall be assumed to have hired the land, and taken the burden of rent and all incidental expenses.

2d. Whether in this account the counsel fees and expenses laid out to establish the will, can be charged against the widow, who succeeded in establishing an intestacy. The Master has decided both points against the complainant, and for the sake of bringing up the whole case, I shall confirm the report on these points, and also on that covered by the first exception.

I take this decree as drawn, and pass it *fro forma,*that the case may not be delayed; as it is intended to be carried to the Court of Appeals.

The complainant appealed on the grounds:

1. That the will of 24th January, 1840, is not well executed to pass real estate; because John P. Williamson one of the three subscribing winesses, took a benefit under the said will as executor, and never renounced nor released the same.

*2952. That even if the said will be a valid devise of the testator’s lands, the widow is entitled to dower in the real estate.

3. That the exceptions to the Commissioner’s report should be sustained. And, that the Commissioner, after ascertaining the amount in the executor’s hands, should ascertain how much of said amount should be considered the result of the real estate, and how much of the personal estate; and what charges should be borne by the .real, or what by the personal estate; and what charges should be borne by the two estates in common. And, that the sums paid for sustaining the will should be charged to the infant, in an account between the widow and the infant.

The opinion of the Court was delivered by,

■Harper, Ch.

We are of opinion that the will in question must, according to the decision of the Court of Law, be considered altogether a will of personal property, and according to the decision of the Court of Law, which we are bound to follow, void altogether. I have no doubt that an executor may be a competent witness, according to the same decision, to establish a will of real estate, and such I should think him in the present case, if there were a direct devise of the land to A or to B. But the rule of Equity as established by the English Courts, notoriously is, that it is in the power of a testator, at his option, to give to his property the character of real or personal estate. If money is directed generally to be laid out in land, it will be regarded as land, and go to the heir at law, or otherwise as directed by the will. So, if the testator has contracted to purchase land before the making of the will, or an intestate before his death, without having taken a conveyance, this will pass as real estate. These rules are so familiar, that it is hardly necessary to refer to authorities in support of them.

*296If real estate be directed to be sold for a particular purpose, as to pay debts or raise an annuity, &c., if after accomplishing the purpose, there should be a surplus, this will still be regarded as land, and will go to the heir at law. But if, as the cases express it, the land be directed to be sold “out and out,” so as to be converted at all events into personalty, this is regarded as a bequest of personal estate. This is explicitly ruled in the case of *Fletcher*vs. *Ashburner,*1 Br. Ch. Cases, 499. The Master of the Bolls (Sir Thomas Sewell) observes, that “nothing was better settled than, that money directed to be employed in the purchase of land, and land directed to be'sold and turned into money, are to be regarded as that species of property into which they are directed to be converted, &c.” “ The owner of the fund, or the contracting parties, may make land money, or money land.” The authorities are very fully collected by Lewin in his treatise on trusts, pp. 177, 178, and the note appended. It is not necessary to comment on these in detail, for I believe there is no question with regard to the general principle. And so in the same treatise, 684, referring to *Singen*vs. *Lowray,*1 Pr. Wms. 172, it is said, in reference to the choice given to a *cestui que trust,*to elect whether the fund shall remain land or money, “ that a *cestui que trust,*had divested money of its real quality by causing the securities to be changed, and the trust to be declared to himself and *his*executors, for this was tantamount to saying the money should not go to the heir.”

There would be insuperable difficulties in any other construction. The office of executor, in its proper signification, has relation only to personal estate. I suppose that if there were a- will merely of real estate and executors appointed, it might be within the competency of the Court to construe the words executors as equivalent to *trustees.*Executors may have a power to sell land: but the decision of the Court of Law, which we are bound to follow, is, that there are no executors. If we should construe the executor in this State, who has been decided to be no executor, to be a trustee; and, if he should sell the *297land, how must the proceeds be disposed of? A trustee having such power to sell, must have paid over the proceeds to the executors, to be distributed as personal estate. But, according to the decision of the Court of Law, there are no executors. I do not know on what principle we could regard the single nominated executor in this State as a trustee to sell. Nor, according to the decision at law, which goes on the supposition of the testator’s being domiciled in this State, can we in any manner recognize the executors in England, or in Georgia ?

We do not at all contravene the decision of the Court of Law, that an executor may be a competent witness to a will devising real estate. But, what belongs exclusively to this Court, and which the Court of Law could not notice, is, that this was no devise of real estate. We do not doubt, but that if the land had been devised directly to A or B, the will might have been established on such testimony: but the entire purport of the will is to dispose of it as personal estate.

It follows, there being no valid will with regard to the property in question, that it must descend to the widow and child according to the statute of distributions; and it is ordered and decreed accordingly.

With- respect to costs and expenses, the report of the commissioner, overruling the third exception is confirmed; costs to be paid out of the entire estate.

Johnston and Dunkin, CC., concurred.

*Decree modified.*