
    [Lancaster,
    June 7, 1824.]
    GRIDER against M‘CLAY, Administrator of GRIDER.
    IN ERROR.
    Surplus money arising from the sale of land by the Orphan’s Court, whether it belong to an infant, a feme covert, or a male of full age, is to be considered simply as money.
    Therefore, where one died intestate seized of land, but not leaving personal estate, sufficient to pay his debts, &C. and the land was sold under a decree of the Orphan’s Court, for that purpose, and a surplus remained which was paid to the guardian of the intestate’s only child, who died in infancy,- it was held, that the said surplus was to go the personal representative of the infant and not to his heir.
    On the return of the record of this cause, on a writ of error to the District Court "for the -city and county of Lancaster, it appeared, that it Was an action on the case for money had and received, brought by the defendant in error, Alexander M‘Clay, administrator of Daniel Grider, deceased, against Abraham Grider, the plaintiff in error, in which the jury returned a special verdict, in substance as follows:
    
      Daniel Grider, the elder, being seized in fee of a tract of land, and possessed of personal property, died intestate, and the defendant, below, Abraham Grider, took out letters of administration on his estate. The personal estate being insufficient to pay the debts and support the infant son of the intestate, the administrators obtained from the Orphan’s Court, an order for the sale of the real estate, for those purposes. 'The land was accordingly sold, and the sale confirmed by the court. A considerable surplus remained after the purposes were satisfied for which the sale was directed, which was paid to Samuel Binkley, the guardian of the infant.' The defendant was afterwards appointed guardian and settled his guardianship account.
    
      Daniel Grider, the elder, left issue, one son, viz. Daniel Grider, the younger, the plaintiff’s intestate. He left also a widow, who afterwards intermarried with the plaintiff, and died in the life time of Dariiel Grider, fhe younger, leaving issue, a son by.her second husband.
    • Daniel Grider, the younger, died some time after his mother, under age, intestate, unmarried, and without issue, leaving besides his half-brother above-mentioned, as next of kin on the part of his father, Abraham Grider, the defendant, and Susan, married to David Buckholdcr, which Abraham and Susan were the brother and sister of the intestate’s father, and claimed the proceeds of the sale, as real estate. The intestate left the following relations on the part of his mother, viz. Samuel, Felix, and Nancy Binkley, the brothers and sister of the plaintiff’s wife, who was the widow of the intestate’s father.
    If upon the whole matter the court should be opinion, that the plaintiff is entitled to recover, they find for the plaintiff, and assess <1 a mages at 7142 dollars and 35 cents. But if the court’s opinion should be in favour of. the defendant, they find for him.
    The opinion of the court below being, that the proceeds of the sale of the intestate’s real estate was to be considered as personal property, and that therefore the plaintiff, his personal representative, was entitled to recover, judgment was entered in his favour, and the defendant removed the record by writ of. error, to this court.
    After the cause had been very fully and elaborately argued by Hopkins, for the plaintiff in error, .the court informed him, that they had a very strong opinion on the subject, which his argument had not removed, but that if he had any thing further to say they would hear him. .
    Mr. Hopkins afterwards deli vered-to the court a written argument, in substance as follows:
    Immediately on the death of the. intestate’s father, the estate, which came to him by' gift from his father, descended to the intestate, his only son, subject to the paymbnt of the debts of the father, and the dower of the mother. The act by which this descent is created, declares throughout, that none shall ever inherit who are not the blood of the father, from whom it descended. By the 11th section of the act of the 19th «/ipril 1794, the half blood are expressly excluded from such an inheritance. The title, possessed of this exclusive character, was complete, the moment the descent was cast: and the only right by, which the intestate himself could claim the surplus of the proceeds of the sale, which remained after the objects.of the sale were satisfied, was.the descent. What was the effect of the sale by the Orphan’s Court, upon the descent previously cast, is now the question. For the plaintiff in error, it is contended, that the sale did not subvert and extinguish the descent, but merely defined and fixed the extent of interest, which descended upon his son," viz. a clear estáte after payment of debts. This was all that did, or, under our laws, could descend. The petition, the decree and the sale, were merely the mode prescribed by law to' reduce to certainty the subject of the descent. They were ancillary and subservient to the primary object of the law, viz. the descent, subject to the payment of debts.- It never could have been the intention of the legislature, by such a proceeding, to change the whole character of the estate, in violation of the leading principle of the intestate law, the preservation of the estate to the blood of the person from whom it descended. When the sale was made, and the' debts, &c. paid, the balance resumed its character as real estate, out of which it issued. The. 19th and 20th sections of the act of 1794, which confer the right to sell the real estate which has descended to a child, harmonise witli this view of the subject. The 19th section declares, that the debts of án in téstate may be paid by raising money on mortgage, to the amount of one third the value of the land, or by sale. The power given to the Orphan’s Court is specific, and its extent exactly defined, both as to the object to be effected, and the mode of effecting it. It is a mere authority, delegated for special purposes, all of which are found in the letter of the law. In this case, a mortgage would have been adequate to the discharge of all the debts, and would have left the descent undisturbed. Can it then be, that the mistake, or dishonesty of the administrator can alter the character of the estate of a helpless infant and make it flow in channels diametrically opposite to those in which it appears to have been the anxious wish of the legislature to preserve it; taking it from the line of those whose industry acquired it, in order'to enrich strangers? To make it depend upon the mere will of the administrator, whether the estate shall change its real quality, and become personal, wouldsubvert the leading objects of the intestate acts, and deprive of the protection of the laws, those who from infancy, are incapable of protecting themselves. It would indeed be, ad liipum committere agnus. The absurdity and injustice of such doctrine is its refutation. It cannot depend,upon an ignorant or interested administrator to make it real or personal estate, at his pleasure, by resorting to one or the other mode of raising money for the payment of debts. The estate, so far. as it is undiminished by debts, preserves its original character for the purpose of continuing it in the blood of the first purchaser, upon the same principle that the estate always returns to the heir at law, after the estates created out of it are spent, 3 P. Wms. 21. Pr. in Ch. 541, 543. Or, to compare it to a case even more analogous, upon the same principle, where lands are devised for the payment of debts, and the sale produces more than enough for that purpose, which-gives the surplus to the heir at law. ' 1 Ves. 108. 3 P. Wms. 20. 1 Ves. jun. 45. 2 Ch.. Rep¡ 589. Thus too, where a surplus remains upon a sale under an execution, it goes to the heir, in exclusion of the personal representative. Commoriwealth v. Rahm, 2 Serg. é¡* Rawle, 375. Bloomfield v. Budden, 1 Yeates, 187. Emlen’s Exors. v. Bogg’s Admrs. 4 Yeates, 67. If the administrator had mortgaged the land, and it had been sold under the mortgage, it does not admit of a doubt, that if a surplus remained after satisfying the mortgage, it would go to the heir; and if he should die, intestate, unmarried, and without issue, ignorant of the sale, and while the money remained, in the hands of the sheriff, or in court, it would go to his heir and not to his personal representative. Where the heir was an infant, the court, in the case supposed, would in an especial manner take care to preserve his rights; for it is a fixed principle, never to permit the property of an infant on his death, to be changed from real to personal, or from personal to real, so as to affect he succession to it in any case. 2 Atk. 413. Amb. 80. 241, 2 IP. Wms. 389. 1 Bro. Ch.Rep. 56. 19 Ves. jun. 109. 3. Wheat. 586.- Nor will a trustee be permitted at his own election to change the rights of the cestui 
      
      que trust. Jhnb. 241, 242. The objects of both of the modes of raising money, pointed out by the act of assembly being the same, it cannot be supposed, that the legislature intended the legal resulsts of those ’modes, should be so widely different; that in the one ease, the surplus should go to the heir at law, and in the other, to the personal representative; and that this result should depend upon the mere will of an administrator, whose choice may be determined by the most improper motives. It seems to be péculiarly the province of the Orphans’ Court, from the objects of its creation, and the powers of a court of equity, which it possesses, freed from legal forms and technical niceties, to preserve what remains of estates sold under its decree, in their original character, particularly where the interests of infants-are affected. The act of assembly under-which the sale took place, directs the surplus to be distributed as is directed by the act for the distribution of intestate’s real, estate. Why is the surplus directed to be distributed as real estate, except to give to it the quality of real estate? It grew out of the real estate, which was bound by certain rules of descent, prescribed by the act, and therefore, it was proper to restore it to the government of those rules of descent. It is only by this mode that the principle, evidently intended by the legislature to be held sacred,' of preserving the estate in the blood of the first purchaser, can be sustained. The legislature well knew, that in all cases in which the intestate left infant children, and the personal, estate was not sufficient to support them, and to pay the debts, a sale must take place in a short period after the intestate’s death, and that if the sale extinguished the descent, the leading principle of the act would, in all such cases, be destroyed by the act itself, and thus the law would become feto de se. To obviate such a consequence, they bound the surplus to the descent, by making it distributable as real estate. It is upon this principle alone, that the widow is prevented from taking one third of the principal, instead of enjoying the interest only-during her life, and letting the principal pass after her death to the heir at law under the descent. If then he takes one third of the surplus after the death of the widow, as heir, what can prevent him from taking the other two thirds, immediately, in the same character? It would be absurd to say, that parts of the same whole, created by the same decree, under the same act, should be held by different rights. The descent was entire, embracing the whole real estate, and distribution is directed to be made of the whole; whence it is apparent, that the whole of the surplus, was intended to be vested in the heir by descent. This was settled by the Supreme Court, to be the true construction -of an act much more adverse to the intei’est of the heir than that now under consideration. Hiller v. Young, 2 Yeates, 261. If in the case referred to, the heir had died leaving a -son, and the widow had married and had another son, would the third set apart for Diller’s widow, have gone to the half brother, or to Diller’s son exclusively? It does not admit of a doubt that it would go to the son of Diller, to the exclusion of aperson, who bad none of the blood of the Dillers in his viens. Thus it appears, that the part assigned to the widow, though converted into money, retains its real quality during her life, and on her death, passes to the heir at law of the first purchaser, no matter how remote. If then, Daniel Grider, the younger, upon the sale of the estate which descended to him from his father, held the surplus as money realised, it never could change its character; because, being an infant, he had not the power to alter it. It remained with him, in the same quality in which it came to him, and no court would allow it to be changed during his infancy. 1 Madd. Ch. 317. Nothing could divest the money of its real character, except some act or declaration of his, evidencing an intent to hold it as money. 3 Jltle. 446, 7, Mmb. 242. 7 Bro. P. C. 548. 1 Madd. Ch. 316. 3 Wheat. 578. And such act or declaration, he was incapable of, by reason of infancy. Where he is absolute master of the property and competent to act, he may manifest his intention to hold it as money, either by declaration or act out of court, as well as by coming into a court of equity, and declaring his intention; but that his intention must be clearly evinced, does not admit of a doubt. 2 P. Wms. 271. Kirkman v. Mills, 13 Ves. This established doctrine refutes the argument of the judge below, that “ such doctrine would be manifestly inconvenient, and contrary to the genius and spirit of our laws.” How can that be so characterized, which grows out of infancy, which can be removed the moment infancy ceases, which isthesubjectofthe mere volition of every adult, and which courts, both of law and equity, foster and protect, with the utmost circumspection?
    The decree of the Orphans’ Court confirming this sale, has impressed upon one third of its proceeds, the quality of real estate, and binds it for two lives, viz: the.lives of Magdalen, the widow of Henry, and Polly, the-widow of Daniel-Grider, in that trans-substantiated state, while the residue is vested in a trustee. Thus, it appeal’s to be the ordinary course of the Orphans’ Court, to give to the surplus money of a sale made under its decree, the'quality of real estate, so far at least, as relates to the widow’s third; and in this case, it has not changed its transubstantiated form, but remains charged on the land in the hands of the purchasers. As then the money set apart for the widow, existed in a realized state, at the time of the intestate’s death, and the plaintiff in error can never be entitled to receive it, except as heir at law of the intestate, the principal, on the death of the widow, must go to the paternal heirs. This position must be true, if Diller v. Young be law. It is in consonance too;.with the exposition given to the intestates laws, by this court, in the case of Sevan v. Taylor, 7 Serg. Rawle, 397. Such being the law, with respect to the widow’s third, how is it as to the residue?' At the time his real estate was sold, the intestate was not four years old. The language of the decree is, “ That the residue be paid to Daniel Grider, only child, or his legal representatives, immediately.” Being incapable of receiving the money himself, this was equivalent to a direction to pay it to his guardian, Abraham, Grider, who held it in trust for him at the time of his death. Thus, a trust was created of the purest and' most .sacred kind in this money, which preserved it in its original, real quality, governed by the rules of descent, without the power existing any where, of altering its character, d iring the infancy of him to whom it belonged. The doctrine of Chancery is uniform, to consider money as land, and land as money, wherever the intention of the parties, or of the legislature, requires it, and it is consistent with justice. . If, therefore, money is covenanted or agreed to be invested in land, equity considers it as real estate, which will descend to the heir. 1 Vern. 471; 2 Vern. 20, 101. Free, in Ch. 503. 2 P. Wms. 171. 3 P, Wms. 211. I f. Wms. 204, 483. So, money devised to be laid o.ut in land, will be considered as land,.and regulated by the same principles as real estate. 3 Aik. 114. 3 Wheat. 577. 1 Br. Ch.- Ga. 497. Where land is devised to pay debts, whatever remains of the proceeds of sale, goes to the heir. And even where the will disposes of the whole of the proceeds of the sale, by a residuary disposition, which .in part, or in the whole, fails to take effect, by the death of the legatee before the devisor, or any other cause, the. heir will take in preference to the executor, or the next of kin. 3 P. Wms. 21. Free, in Ch. 541, 543. In these cases, and in the case of judicial sales, the sale trenches upon the real estate arid its proceeds, to the extent of the object calling for the sale, and no further. The surplus, consequently, remains clothed with the qualities of the subject out of which it arose, 1 John Ch. Sep. 119. 2 Yeates, 261, and will go in a course of descent, whether lineal or collateral. 5 Bro. P. C. 269. 2 Bro. Ch. Sep. 56. 1' Mddd. Ch. 392. 1 Bro. Ch. Sep. 497. It will be liable to the curtesy of the husband, whose wife is equitable tenant in tail. 2 Vern. 536. 1 P. Wms. 172. It will pass under a general devise of real estate. Free, in Ch. 320. 2 Vern. 679. 3 Aik. 254. Mosely, 123; But it will not pass as money under a general bequest. 3 P. Wms. 222. Nor will it, even in' favour of creditors, lose its real character, and become assets for the payment of simple contract debts. 2 Vern. 52. 3 Ch. Sep'. 115. 2 Keb . 841. This transubstantiated real quality, as Lord Haadwicke terms it, (3 Aik. 446.) which courts of equity have impressed upon these surpluses, continues to clothe them, until their absolute 'owner shows his intention to divest the money of the character it has acquired in judicial estimation,’ and hold it as money merely. Where an infant is the owner, he can make no election, and- consequently, the money retains its transubstantiated quality at -the time of his .death. Such is the inflexible character of this rule of equity, that it prevails as well in favour of volunteers as those who come in upon consideration. 3 P. Wms. 322. Forester, SO. 2 P. Wms. 345, 594. It is submitted, therefore, that the plaintiff in error is entitled, not only to the money set apart for the widow, but to the residue also, as heir at law to the intestate.
    
      Rogers and Slay maker, for the defendant in error.
   The opinion of the court was delivered by

Tilghman, C. J.

This is an action on the case for money had and recéived, &c. brought by Alexander M‘Clay, administrator of Daniel Grider,' deceased, (the defendant in error,) against Abraham Grider, the plaintiff in error, A special, verdict was found, the substance of which, lies in a small compass. Daniel Grider, the elder, father of Daniel the intestate, died seised in fee, of land in Lancaster county, leaving a widow, and only one child, the intestate. After his death, his land was sold by a decree of the Orphans’ Court, for the purpose of paying his debts, and supporting his infant child. The sale produced a considerable surplus, beyond the purposes for which it was designed, which was paid to the guardian of the infant Daniel Grider, who afterwards died intestate during his infancy. The question is, whether this money is to be considered as real or personal estate. If personal, the cause is with the plaintiff; if real, with the defendant. The District Court decided in favour of the plaintiff.

The learned counsel for the defendant, made an elaborate argument, in which he went largely into--the powers exerciséd by Chancery, in cases where by deed pr devise, it has been agreed, or ordered, that land shall be converged into money, or money invested in land. The governing principle in such cases is, that what ought to have been done, shall be considered as if done. But, as the object is, to effectuate the intent of the parties, it sometimes happens, that this object is best attained without making that conversion of real estate into personal, or personal into real property, which was originally intended. For instance, where it has been ordered, that money shall be invested in land, and settled on A. in fee, the trustee is not at liberty to pay the money to A., because that would be contrary to the trust; but upon a bill filed by A. being of full age, and under no incapacity, Chancery would order the money to be paid to him, because it would answer no useful purpose, to insist on A’s. being invested with land, which he might instantly convert into money.- But if A. were an infant, when he filed his bill, his prayer would not be granted, because, during his infancy, it would not be in his power to convert the land into money.j and it would be unjust to deprive his heir of the chance of inheriting the estate, in case A. should die during his infancy. This is the principle of Seely v. Jago, 1 P. Wms. 389, on which the counsel for the defendant mainly relies. But it appears to me, that the analogy is Very imperfect between that case, and the one which is submitted in the special verdict before us. • In the former, and indeed, in all the Chancery cases which have been cited, the intent of the person making the settlement, the contract, or the devise, was to be pursued; in the latter, we are to be governed by our own act of assembly, from which the Orphans’ Court had no power to deviate. That court acts under a limited authority, derived from the act of assembly, and'has not the general powers of a Court of Chancery. We must consider the case then, upon the act of assembly of the 19th of April, 1794, 3 Sm. L. 143. But before I examine the provisions of .that law, it may be proper to make some general observations, which will throw light upon it. No feudal tenures having ever existed in Pennsylvania, her legislature has never shown an anxiety to preserve land for the benefit of the heir. On the contrary, it has always been her policy, to consider land, as a kind of property which should be subservient to the principles of justice. It always has been turned into money, where the claim of creditors, or the convenience of families required it Even the right of devise has yielded to the superior right of the creditor. William Penn took the Mosaic law for his model, by which the land was divided among the children equally, except, that the eldest son had a double portion. Since our independence, however, we have divided among the children with perfect equality. Our intestate laws aim at an equality oí property among the children, and to attain it, they convert land into money.. Where the land cannot be divided without injury, the whole is valued, and allotted to one, who pays the.others their proportions in money; and this money is completely money, without retaining any one quality of land. If one of the children be an infant, his share is paid to his guardian, and if he die during infancy, it goes to his personal representative. If one of the children be a feme covert, her proportion is paid to her husband, and no court in the Commonwealth has power to invest it in land, or even secure it for her separate use, as money. This was decided in the case of Yohe v. Barnet, 1 Binn. 363. Having taken this review of our general policy, -let us turn to the act of assembly under which the- Orphans’ Court decreed the sale of this land, and by which this cause must be decided. The 19th and 20th sections of the act of 19th April, 1794, are the most material. By the 19th section, the administrator is authorised to sell and convey such part of the intestate’s lands, as the Orphans’ Court of the county in which they lie, shall,' from time to time, think fit to direct, for defraying their just debts, maintainance of their children, and for putting them apprentices, and teaching them to read and write,” &c. The 20th section prescribes rules for the government of the Orphans’ Court, in their proceedings in these cases, and enacts, that <e If it shall happen that any lands be sold, by virtue of this act, for more than the said Orphans’ Court’s computation of the value there of, then the administrator, or administrators, shall distribute, the same,as by this act is required fortheintestate’s real estate.” The meaning of this is very plain; the surplus money shall be subject to division among the same persons, and in the same proportions, that the land would have been, had it not been sold. The children would have been entitled to their share of the land respectively, in fee, and therefore, they shall have their shares of the money absolutely. The widow would have been entitled to her third of the land for life only; and therefore, she shall have the interest of one third of the surplus money for life. The principal of that one third, remains to all intents and purposes, money, and is distributable, after the death of the widow, among the children, in the same proportions in which they took the other two thirds. The expression, that the administrators shall distribute the surplus, is worthy of remark ; for it will be found, that throughout the whole of this act, where land is to go to the heirs, the word descend is used, and where money is to be divided, the expression is distributed. The attention of the legislature was drawn immediately to this surplus money. They were providing for it. It is inconeeiváble, therefore, why, if they had intended it to retain any quality of land, after its distribution, they should not have said so. It is of no importance to the heirs, whether the property be considered as real or personal, since they have the absolute disposal of it, in either case. But to those who succeeded to an heir who dies during infancy, the nature of the property may be of great importance, for it may go in a different direction, according as it be real or personal. It would be difficult, however, to assign a reason, why the legislature should be more desirous of preserving to this surplus money, the quality of land, than to the money which is distributed among the heirs, on the partition of a real estate, which does not admit of division. We find no such intention on the face of the law. Care is taken, that the money shall go to the person who would have been entitled to the land, had it remained unsold, and there the legislative provision stops, its object being accomplished. I know not then, what right the courts of justice have, to indulge speculative notions, in order to clothe money with qualities which do not naturally - belong to it, and thereby introduce an artificial system, which may be attended with more difficulties than can be foreseen. If this money is to be considered as land, how long is it to remain so ? Is it ever to return to its natural state, and when ? The counsel for the defendant have an answer of their own to these questions. They say, that if it comes to the hands of an adult, it is completely money at the moment of payment; provided that adult be not a feme covert. But if it comes to an infant, or a feme covert, it is tobe considered as land, until the infant arrives at full age, or the feme covert becomes suijuris. This, to be sure, would avoid many difficulties, and might be a good legislative provision. But what foundation is there for it in the law as it now stands? I confess I can see none. I have examined all the cases in our own' courts, which were cited in the argument, but not one of them, nor any other which has reached us by tradition, supports the pretentions of the defendant. Diller v. Young 2 Yeates, 261, is the only one which bears upon the subject, and it makes nothing against the plaintiff. It was there decided, that where land is sold by order of the Orphans’ Court, for the payment of debts, that part of the surplus money which is paid to the widow, shall be held by her, only for her life, after which, it reverts to the children. This is exactly according to the plaintiff’s position. Whenever the land is sold, the proceeds become money, and so remain for ever. But the widow takes no greater interest in the money, than she would have done in the land; that is, an estate for term of life. Upon the whole then, although this special verdict presents a case very important in principle, yet I consider it as by no means difficult of solution. It does not appear to have been expressly decided, yet I think it has been generally under stood, that surplus money, arising from sales of land by order of the Orphans’ Court, whether it belong to an infant, a feme covert, or a male of full age, is to be considered simply as money, and nothing else. I am of opinion, therefore, that the judgment of the District Court should be affirmed.

Judgment affirmed.  