#### WILLIAM SMITH AND WIFE & OTHERS vs. WILSON McCRARY & AL.

A testator, who was seized in fee in his own right of two thirds of a tract, and seized of the other third in right of his wife during the coverture, and also possessed of personal property, devised as follows : “ I give and bequeath ‘ to my wife during her natural life the whole of my landed and personal property. And after the death of my wife the whole of the lands and personal property (except the slave Csesar) to be sold, and the money arising • from the sale to be equally divided between my sons and daughters.” Held that the testator did not intend to include in his devise the lands he held in right of his wife.

When land is directed by a will to be sold, after the death of one to whom it is devised for life, and the money arising from the sale to be divided among certain ulterior devisees, Equity treats the land as personalty, and, if one of those devisees should die before the expiration of the life estate, his or her share of such proceeds, being a vested interest, would go to his personal representative, and be disposed of as personal property.

When a will does not dipoefc, in express terms, by whom a sale of lands, directed to be sold, is to be made, it is in the power, and it is the duty of the executors, who qualify, op the survivor of them, or of the administrator with the will annexed, to malee such sale.

The case of Foster v Craig, 2 Dev. & Bat- Bq. 209, cited and approved-

This cause was set for hearing at the Spring Term, 1844, of Davidson Court of Equity, upon the bill and answer, and transmitted by consent to the Supreme Court.

Thp bill was filed for the purpose of obtaining the construction of the court upon certain parts of the will of Henry McGuire. The bill set forth that the said Henry McGuire died in the year 1834, having previously duly made his will with the proper solemnities to pass lands — and that the said will had been duly admitted to probate, and the executors therein named, to wit, the widow, Margaret, and James McGuire, the son of the testator, qualified as such ; that in and by the said will, the said Henry devised and bequeathed as follows, to wit, “ I giye and bequeath unto my beloved wife, *205Margaret McGuire, during her natural lifetime and during her widowhood, the whole of my landed estate, all my horses, cattle &c. (mentioning particularly his perishable property.) I further give to my wife during her widowhood five negroes, named &c., and should she marry, in that case my will is, that my executors hereinafter named give unto her her distributive share, agreeably to act of Assembly. And after the marriage or death of my wife, my will is, that the whole of the lands and negroes, except Ccesar, which I have devised to my son Addison, with the whole of the otluer property be sold, and the money arising from the sale thereof be equally divided among my sons and daughters.” The bill further set forth that Margaret, the wife, survived her said husband, and occupied and possessed by the assent of the executors all the property devised and bequeathed to her during her life, until she died in 1843, having never contracted a second marriage — that the testator left surviving him the following children, to wit, Margaret, who afterwards intermaried with the defendant Casper Smith, Elizabeth, rvho intermarried with the defendant Wilson McCrary, Susan, the wife of the plaintiff David Yarborough, Nancy, the wife of the plaintiff William Smith, Sarah McGuire, Emily McGuire, James McGuire, William McGuire and Addison McGuire; that the femes covert here mentioned were married before the death of the widow, Margaret McGuire; that previous to the death of the said Margaret, James McGuire died intestate, leaving the plaintiff Hamilton his only child at law, and leaving a widow who is since dead, and whose only heir at law and distributee is the said Hamilton ; that also, previous to the death of the said Margaret, the widow, Margaret, the wife of the defendant Casper Smith, died, leaving issue an infant child, which infant also died during the tenancy for life, without brother or sister ; that since the death of the said tenant for life, William McGuire died intestate, leaving the plaintiffs, Margaret, Grecian, Milos and Gerusha his only children and heirs at law, and leaving the plaintiff Fanny, his widow; that Elizabeth the wife of the defendant Me* *206Crary, died since the death of the tenant for life, having nevcr had issue; that the said deceased persons departed this life in point of time as follows: 1st. Margaret, wife of the <jefcn<jan(; gmith; 2d. her infant child; 3d. James McGuire and his widow; 4thly. Margaret, the widow of the testator Henry; 5thly. William McGuire; 6thly. Elizabeth, the wife of the defendant McCrary. The bill further stated, that one-third of the only tract of land, which was possessed and occupied by the testator at the time of his death, belonged in fee to his wife, the said Margaret, the other two-thirds belonging in fee to the testator himself. The bill was filed by the surviving children of the testator, and by the heirs of such of the children as had died, against Wilson McCrary, the administrator, with the will annexed, of the testator Henry McGuire, the said Wilson, as administrator of his wife Elizabeth, and Casper Smith as administrator of his wife Margaret. The bill prayed the court for their opinion upon the following points : 1st. Did the third part of the land, belonging to the widow in fee, and which the testator held as tenant by the curtesy, pass under the devise of the whole of his landed estate '.l 2dly. Did the testator intend to convert his land into personalty “ out and out,” so as to break the descent, or have the heirs an election totake the land itself, and if sold, shall the proceeds go to the heirs or next of kin? 3d. What interests have the defendants Smith and McCrary in the real and personal estate devised ? 4th. What interest has the plaintiff Fanny in the real and personal estate, as the widow of William McGuire? 5th. Who are entitled to the share of the said estate owned by the late Elizabeth, wife of the defendant McCrary ? The bill then prayed for a sale of the said land, as a partition could not, without injury to the heirs, be made by metes and bounds.

The defendants Smith and McCrary admitted the facts stated in the plaintiffs’ bill, and claimed that the land directed by the will to be sold was thereby converted into personalty in the view of a Court of Equity, and that they were entitled as administrators to the shares bequeathed to their fate wives respectively.

*207 Clemmons for the plaintiffs.

Caldwell for the defendants.

Daniel, J.

We are of opinion that the testator, by making use of the words, u my la7ided estate,” in the above clause of his will, did not intend to include his wife’s landed estate in the said tract of land ; no fair interpretation can give the words so extreme a meaning; as he must have known, that the interest which he then held in her land would determine on his death. Seco7idly, the remainder in the testator’s land and personal estate is, by the will, directed to be sold, and the money to be raised from this mixed fund is directed to be divided among his sons and daughters. A Court of Equity considers real estate or personal, as that species of property into which it is directed to be converted. Nothing is better established in Equity than this principle, that money directed to be employed in the purchase of land, or land directed to be sold and turned into money, is to be considered as that species of property into which they are directed to be converted; and this, in whatever manner the direction was given, whether by will, contract, marriage articles, settlement or otherwise. The owner of the fund may make money land, or land money, and it is the business of a Court of Equity to enforce the execution; Fletcher v Ashburner, 1 Bro. C. C. 497; Lechmere v Carlile, 3 P. W. 211; Ashby v Palmer, 1 Mer. 296. In this case, the testator has directed his land to be converted into money, and mixed with the money arising from the sales of the personal estate, for the purpose of division among his children, on the deathef their mother; and although one of the children (Margaret the wife of defendant William Smith) did die during the life of the tenant for life,- still the purpose exists, for which the land has been directed to be converted, to wit, the division among the children on the death of his wife the tenant for life. That share (Mrs. Smith’s,) of the mixed fund, created, or to be created by the sale, must go to her administrator ; for equity impressed on the estate in remainder *208in the land the character of personal property, which was vested in the legatees (the children) from the death of the testator. The foregoing principle appears to be now well established, Vlelcher v Ashbuvner, 1 Bro. C. C. 497; Smith, v Claxton, 4 Madd. Rep. 484. If the purpose of the conversion no longer existed, the property would remain as it was in the hands of the testator, and pass according to its true nature. Smith v Claxton, 4 Madd. 484; Leigh and Dalzell on Conversion 72. The lands which belonged to the testator, the slaves and their increase, and the other personal property directed by the will to be sold, must be decreed by this court, to be sold and converted into money. The said fund will then be divided into nine equal parts or shares; one share will be assigned to each of the living children ; one share to Casper Smith, (the administrator of Margaret ;) one share to Wilson McCrary, (the administrator of his late wife Elizabeth;) one share to the administrator of Wm. McGuire, dec’d; and one share to the administrator of James McGuire, dec’d. Thirdly, the complainants are the heirs at law of the widow, Margaret McGuiro, the elder; and they state in the bill, that the | of the land, mentioned as having descended to them from her, cannot be divided without loss and injury ; they pray, that it (to wit, the ¶) may be decreed, under the the act of Assembly, to be sold, and the money divided among them,- according to their respective rights. We are of opinion that they are entitled to a decree to have the one-third of the land sold as prayed for. Fourthly: it is asked of us what interest William McGuire’s widow (Fanny McGuire) takes in the land descended from his mother. He died after his mother, and he was therefore seised at his death as a tenant in common of one-eighth of the said land, which descended from his mother; out of this one-eighth part his widowj Fanny McGuire, is entitled to dower. She agrees that the said land may be sold, and that her dower interest may be paid to her in money. Fifthly: that the executors or survivor could sell the land, intended to be converted, and personal estate after the death of the tenant for life, and to form *209a mixed fund for distribution among the legatees, is established by the case of Foster v Craig, 2 Dev. & Bat. Eq. 209; and by the Revised Statute, ch. 46, s. 34, on the death of the executors that duty devolves on the administrator with the will annexed. It will promote the convenience of the parties, and probably improve the price of the whole tract, to appoint Mr. McCrary to be also the commissioner to sell the undivided share, which descended from Mrs. Margaret McGuire, the testator’s widow. The sale may thus be of the whole undivided tract, and the proceeds of the sale may be divided between the several persons, entitled to the respective estates, according to their rights before declared.

Per Curiam. Decree accordingly.