
    SAMUEL J. PROCTOR vs. SAMUEL W. FEREBEE.
    A testator by his will devised, among other things, as follows: “ I ■ leave all my lands not given away, to be sold at six and twelve months credit; after my debts are paid, the residue of my estate ,to be divided between my wife, daughter and son,” and he appointed an executor “to sell his lands before mentioned,” and to execute his will in all respects, it was held that the testator intended a sale of his real estate at all events, either to create a fund for the payment of debts, in room of a part of the personal estate, or for a division between the wife, daughter and son; and that therefore, in this Court, the fund is con- ■ sidered as converted, out and out, into personalty.
    
      Held further, that where, in this case, the executor had refused to qualify and an administrator with the will ahnexed had sold the lands, and a Court of Law had decided that he had no power to convey a legal title, yet as the administrator had disposed of the proceeds of the sale according to the directions of the will, the heirs at law of the testator were but trustees for the purchaser, and should be decreed to convey to him the legal title.
    This was a bill filed by the plaintiff against the defendant, in Pasquotank Court of Equity, to which there was an answer by the defendant, and which, at the Spring Term, 1840, of that Court, was set for hearing, and ordered, by consent, to be transmitted to the Supreme Court.
    The facts, as exhibited by the bill, answer and proofs, appeared to be these:
    Thomas P. Williams died about October, 1799, having first made a last will and testament, executed in' due form to pass real estate, which was admitted to probate in the County Court of Currituck, where he resided. Of this will he appointed Malachi Sawyer executor, who refused to qualify, and letters of administration with the will annexed were duly granted to Thomas C. Ferebee, who qualified and took upon himself the execution of the said trust. The testator in and by his said will devised, among other things, as follows:
    “ I leave all my lands not given away, to be sold at six and twelve months credit; after my debts are paid, the residue of my estate to be divided between my wife, daughter and son before mentioned.”
    In another part of the will the testator adds:
    
      «I nominate and appoint Malachi Sawyer, Esq., of Cam-^en county> my whole and sole executor to this my last will and testament, to make sale of my lands before mentioned, an(j t0 execute this instrument of writing in every respect whatever ”
    Thomas C. Ferebee intermarried with Elizabeth, the daughter of the testator, and after his qualification as administrator with the will annexed of the testator, filed his bill in the Court of Equity for the District of Edenton, praying for a sale of the lands belonging to the testator, not specifically devised. The said Court decreed a sale of the same to be made by the said administrator. Of the lands thus decreed to be sold, there was a tract, lying in the county of Camden, (and particularly described in the bill.) The said tract was offered for sale under this decree, and Enoch Sawyer being the highest bidder, became the purchaser thereof, and received a deed in fee therefor from the said Thomas C. Ferebee, as administrator as aforesaid. The said Enoch Sawyer subsequently conveyed the said land in fee simple to Frederick B« Sawyer. The said Frederick B. Sawyer died, leaving the mother of the plainfiff his only heir at law; and the plaintiff is the heir at law of his mother. The plaintiff’s bill further charged that the said Frederick B. Sawyer, in his lifetime, commenced reclaiming the land included in the said tract, which was, at the time of his purchase, unimproved swamp land, and considered to be of little value; that by the labor and exertions of the said Frederick and his heirs, the said land had been reclaimed and become of great value. The bill further alleged, that by the will of the said Thomas P. Williams, the lands before mentioned were, in equity, converted into personalty; that the administrator with the will annexed had credited, in his account .with the estate of his said testator, the proceeds of the sale of the said land, and had actually applied them, in a due course of administration, to the payment of the debts of the estate, or had paid them over according to the directions of his said will. The plaintiff further charged that he and those under whom he claimed, had the actual possession of the said land for twenty years and upwards, during which time they had greatly improved the sanie. The bill further charged that the tenant of the plaintiff, being in the possession of the said land, the said Samuel W. Ferebee, defendant in this suit, commenced an action of ejectment against him in Camden Superior Court of Law, which suit was ultimately decided in the Supreme Court (see Ferebee vs. Proctor, 2 Dev. &. Bat. 439,) in favor of the lessor of the plaintiff; that the said recovery was effected upon the technical ground that the said Thomas C. Ferebee, as administrator, was not authorized to sell and convey the legal title to the said estate; and that the said Samuel, after his said recovery at law, entered into the possession of the said estate, and refused to convey it to the plaintiff; and the bill called for a conveyance, &c.
    The answer of defendant admitted all the facts above stated, except that it insisted that the recovery at law was not upon the ground stated in complainant’s bill, but upon the ground that the wife of Thomas C. Ferebee, the heir at law of Thomas P. Williams, was not a party to the bill in equity, mentioned in the plaintiff’s bill.
    
      A. Moore for the plaintiff.-
    
      Kinney for the defendant.
   Ruffin, Chief Justice.

After the judgment of this court in the action of ejectment between these parties, at June Term, 1837, the lessor of the plaintiff went into possession of the premises recovered. Proctor, the defendant at law, then filed this bill against Ferebee, and therein states the will of Thomas P. Williams, and all the other matters touching the titles of the respective parties to the land in controversy in that action, in substance as the same appear in the report of the suit at law in 2 Dev. & Bat. Rep. 439. But the bill .further states that Thomas C.- Ferebee,. the administrator of Thomas P. Williams, and husband of Peggy Williams, (heir of Thomas P. Williams,) and father of the present defendant, received the price bid for the land, and carried the same into his account as administrator, and applied the same, in part, to the payment of the testator’s debts; and paid over two thirds of the residue thereof to the testator’s widow and to his son Samuel, as their shares, under the bequests in the will,. and retained the other third part as the share of his wife Pegun<^er same bequest. The prayer is, that the defendant may be decreed to restore the possession, convey the legal ti-tie, and account for the rents and profits.

A ciecuee in notU/íer0se" divest a ti-tut the°pen!oú who has the title, and who is hTthede^ cee, to convey,

The answer admits all those facts as set forth in the bill. But it insists that the recovery at law was effected, upon the ground that Mrs. Ferebee was not a party to the suit, brought by Thomas C. Ferebee, her husband, and administrator of Thomas P. Williams, dec’d, for the sale of the land; and for the same reason that the present defendant, who claims as her heir, cannot, in this court, be bound by the decree therein, or any thing done under it.

We must remark that the defendant is mistaken as to the ground of the recovery at law. The court expressly declined questioning the operation of the decree, on the interest of Mrs. Ferebee, merely on the ground that she was not a party to the suit. It was so declined, because, if she had been a party, the decree could not have affected her legal title, for the reason that a decree in equity does not profess, and cannot per se, divest a title at 1 aw, but only obliges a person who ^as ^ an(^ w^° mentioned in the decree, to convey as therein directed. In that case Thomas C. Ferebee was to convey. But as the title was in the testator’s heirs, and not in him, his conveyance passed nothing; and the title remained, as before, in the heirs of the testator. . , , , . That was the reason why the judgment m ejectment was given; for as the present defendant’s mother had not conveyed he was, upon the death of his father, entitled in possess- ' ' *■ ' A ion to an undivided moiety of the land.

Whether in this Court the defendant can retain the benefit of that judgment,, depends on different principles. Upon the admitted facts we think it clear he cannot.

Upon the construction of the will,-we before expressed the opinion that a sale of the land was not only to be made in case it became necessary, in aid of the personal estate, for the payment of debts, but that the intention was positive that there should be a sale at all events, either to create a fund for the payment of debts in room of a part of the personal estate, or for a division between the wife, daughter and son. We now see no reason to doubt the correctness of that opinion, but think it sufficiently established by the reasons then stated. Consequently, in this Court the fund is considered as converted, out and out, into personalty, because the testator intended that it should be so converted.

when land {,y aTeítat0 be .converted out and ont

In this aspect of the case, then, the defendant’s mother had the legal estate, upon an express trust to turn the land into money, and pay the proceeds into the hands of the personal representative of the testator, to be by him applied, first, to the payment of his debts, and then, secondly, to be divided among three persons, of whom she was herself one. Now, admitting that it is competent for persons thus entitled to the proceeds of the sale of land, to elect to take the land itself, or that only so much shall be sold as will satisfy the debts, yet nothing of that kind occurred here. On the contrary, the parties agree that a sale was necessary for the payment of debts, and part of the proceeds of the land was so applied. Indeed, two of the three legatees, Mrs. Williams and Samuel Williams, expressly elected that there should be a sale of the land, and in their answer, in the suit in equity, joined in the prayer for it. But here the defendant objects that his mother was not a party to that suit, and therefore, her share is not bound by the proceedings. If she had been a party, the decree would indeed have concluded her, as it does those who were parties proprio vigore, without regard to the truth of the facts stated in the pleadings, or declared in the decree. But in this case it is not material that Mrs. Ferebee should have been a party to that suit; nor is it necessary to recur to that proceeding, eyen to bind Mrs. Williams, or Samuel Williams, or for any other purpose in this cause. It may be dismissed from our consideration altogether, and there will yet remain enough to compel the relief to the plaintiff. It is admitted that the widow and son received their shares of the proceeds of the sale. They therefore must be regarded as concurring in or confirming the sale by that act, independent of the decree. Then as to the share of Mrs. Ferebee, it is to be recollected that, in the view of this Court, that is personalty, and, by consequence, at the disposition of the , i mi •r? ill t , . band, The wile could make no election to the prejudice of the husband. On the contrary, the husband, having received the purchase money, and paid to other persons such parts as they were entitled to, kept his wife’s share as a personal legacy, belonging in law to himself, as in truth it did.

into personalty, the share of a ■wife belongs in the view of this court to her husband as other perponalty.

Thus the case is that of a sale of land by the cestuis que trust, who are here looked upon as the owners, and the receipt of the purchase money by them, upon the strength of which the purchaser calls on the trustee for the legal title. Of course nothing remains but for the. trustee to convey, as asked. The plaintiff is therefore entitled to he restored to the possession; and there must be the usual decree for a conveyance, to be approved by the Master, and for an account of the rents and profits, and of the costs adjudged to the present defendant as lessor of the plaintiff in the suit at law; and the defendant must pay the costs of this suit.

Per Curiam. Decree for the plaintiff accordingly.  