
    Richmond.
    Washington’s ex’or v. Abraham & als.
    
    1849. April Term.
    
    (Absent Cabell, P.)
    Husband and wife convey the lands of the wife in trust for themselves during their joint lives, with power to the wife to direct a sale and dispose of the proceeds either in her lifetime or by will, or to dispose of the land by will; and if the land is sold in her lifetime, and she dies without will, that the husband shall receive out of the proceeds of sale $ 2500, and the balance to go to certain other persons named. If the land is not sold during her life and the husband survives her, he shall hold and enjoy the land during his life. But if he, within three years from the wife’s death, require a sale of the land, the trustee shall sell it within six months; and out of the proceeds of sale shall pay the husband $2500. The husband survived the wife, and within three years from her death elected to have the land sold. The trustee was then dead, and by a friendly suit in chancery, a new trustee was appointed, who advertised the land for sale; but before the day of sale the husband died. Held :
    1. That the husband having elected within the three years to have the land sold, and take the $ 2500 in lieu of his life estate, the effect of such an election was an equitable conversion of the land into money.
    2. That the election of the husband was not defeated by his death before the sale was made; and his ex’or is entitled to have the sale made, and to receive $ 2500 out of the proceeds of said sales.
    
      Mrs. Ann E. Washington, the wife of William Washington, was the owner in her own right of a tract of land in the comity of King William. A few weeks before her death, William Washington and Mrs. Washington, by a deed bearing date the 18th day of March 1842, conveyed this land to William F. Abraham, in trust for themselves during then’ joint lives; and upon further trust that the said Abraham, at any time during the joint lives of Washington and wife, when she should direct him so to do, should, as early as might he, sell the land upon such terms as she should prescribe, and pay over the proceeds of sale to her, to be disposed of at her pleasure; or if she should die before the proceeds of the sale were collected and paid to her, that the trustee should pay the same to the persons to whom she should by last will, or by any writing purporting to be her last will bequeath them. And if Mrs. Washington left no last will or such writing at her death, that William Washington should receive from the said proceeds of sale the sum of 2500 dollars; and the residue should be equally divided between Mrs. Washington’s three unmarried sisters, viz : Maria T Virginia and Roberta Abraham and her niece Mary Frances Abraham. But if Mrs. Washington should survive her husband, and the said land had not been previously sold by virtue of the preceding provision, then the deed and its trusts should be void, Mrs. Washington should be reseized of the land, and the trustee, Abraham, should reconvey the land to her, or to such persons as she by last will or otherwise should direct. Then came this provision: “ And further that if the said land and premises shall not be sold during the joint lives of the said William Washington and Ann his wife, and if the said William Washington shall survive the said Ann, then the said William F. Abraham, his heirs and assigns, shall permit the said William Washington to hold, occupy, use and enjoy the said land and premises during his lifetime; and to take and receive the rents, issues and profits thereof to his own use, without any hindrance, molestation or disturbance. But if the said William Washington shall, at any time within three years after the death of the said Ann, desire a sale of the said land and premises, he may require a sale thereof, and the said William F. Abraham, his heirs or assigns, shall, within six months after being required by the said William Washington, make sale of the said land and premises, and of the proceeds of sale, shall require the sum of 2500 dollars in cash, and shall pay over that sum to the said William Washington immediately on the receipt thereof, in lieu his life estate aforementioned in the land. And as to the residue of the proceeds of sale, the said William F. Abraham, his heirs or assigns, may allow a reasonable credit, if it be deemed advisable ; and shall pay over such residue to such person or persons as the said Ann shall by last will and testament, or by any writing purporting to be her last will and testament, direct, or to whom she may bequeath the same ; and in the event of her death without leaving a last will and testament, or any such writing, the said William F. Abraham, his heirs and assigns, shall divide such residue equally between the said Ann’s three sisters and niece aforesaid, and shall pay the same accordingly.” The deed further provided for a sale of the land at the death of William Washington, if not previously sold, and for a disposition of the proceeds of sale, according to Mrs. Washington’s will, or if she died without will, to her sisters and niece before named. And in conclusion provided, that in the event of the death or other inability of William F. Abraham to execute the trusts of the deed, another trustee should be appointed in his stead.
    
      Mrs. Washington left a will which bears date the 21st of March 1842, and was admitted to probat in the County court of King William on the 23d of May following. By her will she devised to her husband for his life the land mentioned in the deed, for him to take the rents and profits to his own use for the same period; but not to sell the same. And she directed that at his .death, the land should be .sold by her executor, who .should out of the proceeds of sale first pay a debt due to William and Mary College. She then gave out of the same fund, 500 dollars to her brother Henry Abraham, in trust for the alone use of her sister-in-law Mary Abraham and her children, during the life of the husband of the said Mary ; and the residue of the sales of the land she gave to her three sisters and niece mentioned in the deed ; but provided that if either of them should die before arriving at the age of twenty-one years or marrying, that out of the portion of such, Henry L. Abraham her brother, should receive 300 dollars, and the residue thereof should be equally divided among the survivors.
    
      William Washington, in the commencement of the year 1843, rented out the tract of land for that year to Temple C. Moore, for 700 dollars, and took his bond payable on the 1st of January 1844; which bond he conveyed in trust with other property for the payment of certain debts which he owed. On the 27th of June 1843, he filed a bill in the County court of King William, in which after referring to the deed herein before mentioned, and stating that his wife Mrs. Ann Washington, and also Yirginia Abraham, one of her three sisters, were dead, the latter under the age of twenty-one years, and unmarried, he set out the provision in the deed, authorizing him to elect within three years from the death of his wife, to have the land sold, and to take 2500 dollars in lieu of his life estate; and stated that he had elected to have the land sold, and take the 2500 dollars in lieu of his life estate, but that the trustee, William F. Abraham being dead, there was no one authorized to make the sale. He then made Maria T. Abraham, Henry L. Abraham, Roberta and Mary Frances Abraham, the last two of whom were infants, parties defendants, and prayed for the appointment of another trustee; and that he should be decreed to sell the land pursuant to the terms of the deed, and pay to him the sum of 2500 dollars; and the residue of the proceeds of sale should pay to the persons entitled under the deed and will of Mrs. Washington.
    
    
      Maria T. Abraham and Henry L. Abraham answered the bill, and consented to the appointment of a trustee, and'to the prayer of the bill. Roberta Abraham, the other sister, and Mary Frances, the niece, were infants, and answered by their guardian ad litem, and committed their interests to the protection of the Court. The answers were filed with the bill; and on the same day, a decree was made, appointing Beverly D. Roy trustee in the place of William F. Abraham; and directed him, after advertising the land for sixty days, to proceed to sell the same for cash for 2500 dollars, and the residue on such credit as to the trustee might seem fit and proper, taking bond, &c.; and that he should report his proceedings to Court, in order to a final decree. About the time this decree was made, it was agreed in writing by the plaintiff and the adult defendants, and the guardian ad litem of the infants, that if their counsel should be of opinion that William Washington should account for the profits accruing after the date of the decree up to the 1st of January 1844, which he had received or assigned away, to the trustee or to the defendants in the suit, that then he would release or pay over to the trustee or the defendants whatever sum should be agreed on by the counsel.
    In pursuance of the decree aforesaid, the trustee Roy advertised the land for sale ; but before the day of sale; William Washington died. The legatees under Mrs. Washington’s will thereupon filed their bill in the Circuit court of King William, to enjoin the sale of the land. And they insisted that William Washington, having held the land up to the time of his death, and having appropriated the profits up to the 1st of January 1844, by having disposed of the bond for the rent up to that period, he was not entitled to have the 2500 dollars which was intended to be in lieu of his life estate. And they founded their application to the Circuit court for an injunction on the ground that the trustee held himself bound to sell, and that the sale would take place before they could apply to the County court to arrest it.
    
      The injunction was granted; and John Washington, the executor of William Washington, appeared and filed his answer, in which he insisted that William Washington having made his election to have a sale of the land, and to take the 2500 dollars in lieu of his life estate, within three years from the death of Mrs. Washington, equity must consider that as done which ought to have been done, and that therefore he was entitled to have the 2500 dollars. And as to the appropriation of the profits of the land for the year 1843, he referred to the agreement between the parties, and expressed himself willing that the amount of the profits to which the plaintiffs were entitled, should be deducted from the sum of 2500 dollars, to which he was entitled.
    In November 1843, the Court, by the consent of the parties, made a decree appointing commissioners to sell the land, and reserving the question as to the respective rights of the parties; and the commissioners afterwards reported that they had sold the land for the sum of 4630 dollars 80 cents.
    The case in the County court having been brought up to the Circuit court, the two causes came on to be heard together at the November term 1844, when the Court held that the defendant John Washington, ex’or of William Washington, was not entitled to the sum of 2500 dollars out of the proceeds of the sale of the tract of land specified in the deed aforesaid; and that the whole of the proceeds of the sale, after satisfying the debt due to William and Mary College, belonged to the legatees under the will of Mrs. Washington. From this decree the executor of William Washington applied to this Court for an appeal, which was allowed.
    
      Daniel and Morson for the appellant:
    Did the deed of the 18th March 1842, authorize the land thereby conveyed to be sold at the election of Washington, and did he elect ? Nothing can be more express than that he had the power to elect; and the fact of his election is equally certain upon the proofs in the record. He filed his hill in the County court, dedaring that he had elected to take the money, and ask-f°i' a sale of the land ; and at his instance in pursuanee of the prayer of his bill, a decree for a sale of the land and the payment to him out of the proceeds of sale of the sum of 2500 dollars was made. Certainly the only authority which the Court had to make a sale at that time, was his election to have it made; because both the deed and the will of Mrs. Washington gave him the land for his life, if he chose to keep it.
    The doctrine on the subject of election applicable to this case is familiar, and requires no lengthened discussion. We refer to Story’s Equ. Jur. § 1075, 793 ; Fletcher v. Ashburner, 1 Bro. Ch. R. 497; Lechmere v. Carlisle, 3 P. Wms. 211; Tazewell v. Smith’s adm’r, 1 Rand. 313; Commonwealth v. Martin’s ex’or, 5 Munf. 117; Hutchin v. Mannington, 1 Ves. jr. R. 366. These authorities establish the principle that land directed to be converted into money by deed, will or contract, is money. And in the absence of any declared intention to the contrary, the conversion is immediate ; equity considering that as done which ought to be done. And although the conversion is made to depend upon a contingency, yet when the contingency occurs the conversion takes place. Elwin v. Elwin, 8 Ves. R. 546; Falkner v. Hollingsworth, cited Leigh & Dalzell on Conversion of Real Property, p. 26, 1 Law Libr.
    The election of William Washington having been made within the time prescribed by the deed, upon the principle of equity that what ought to be done will be considered as done, the land must be held to be converted from that time; and the accident of the death of the trustee, cannot affect the rights of the parties. The provision of the deed, that the trustee shall' make the sale within six months, was intended for the security of the husband. It does not postpone the sale for that period, but was intended to compel a sale within the time prescribed.
    
      Robinson and Young for the appellees.
    The doctrine advanced by the counsel on the other side is not involved in the case. The land belonged to Mrs. Washington in fee. Her husband was only entitled to it for their joint lives, or if there was issue of the marriage, for his life. He is not entitled to the 2500 dollars unless Mrs. Washington has given it to him. It was her right to give or to withhold it. The only question, therefore, is, has she given it ?
    The deed provides that if the land is not sold in William Washington’s lifetime, the proceeds of the sale of it are to be paid over according to her will, or if she left no will, to persons named in the deed. The will does not give him 2500 dollars. Moreover it was in lieu of his life estate in the land that he was to receive 2500 dollars; and he held the land and received the profits during his whole life. It is, indeed, a new principle in the doctrine of election, that a party who is authorized to elect which of two things he will take, may take both.
    In 1843, Washington filed his bill in the County court, saying he had elected to have a sale of the land, and asking for the appointment of a trustee. This bill takes no notice of Mrs. Washington’s will; and only makes those parties who would have taken under the deed, if there had been no will. The answers are filed, and the decree appointing a trustee and directing a sale is made on the same day with the bill. There was, therefore, no injury to him from delay by the death of the trustee; but the case stands precisely as if the trustee had lived and had advertised the land for sale, and Washington had died before the day of sale arrived. In. fact the new trustee had advertised the sale, and * Washington died before the day fixed for it.
    The question whether Washington is entitled to the 2500 dollars depends upon the deed, and adjudged cases can afford little aid in deciding it. The deed reserves the estate to Washington and his wife for their joint lives, unless she directs a sale. There is a material difference between the provision for a sale in Mrs. Washington’s lifetime, and that for a sale after her death. The first says that the trustee, upon being required by Mrs. Washington, shall proceed, “ as early as may be,” to sell, &c. The other, that the trustee shall, “within six months after being required” by William Washington, make sale, &c. The parties obviously contemplated that the trustee might delay the sale for six months after he was directed to sell; and then it is provided in broad and general terms, that if the land is not sold in the lifetime of Washington, the proceeds shall go over. This provision is applicable to every case of a sale after the death of Mrs. Washington, as well where William Washington had, as where he had not, directed a sale. It cannot be the true construction of the deed that, on a sale after the death of William, Washington, he was to receive 2500 dollars, which, by the express terms of the deed, was to be in lieu of his life estate, for a life estate which had then terminated.
    If the right of William Washington had attached to this 2500 dollars in his lifetime, it would then have been important to consider the doctrine discussed by the counsel on the other side, in order to ascertain to whom the property should go, as between his heirs and distributees. But unless it serves to shew that the deed intended Washington to take it on a sale after his death, it is not important. Lee & Dalzell on Conversion of Property, p. 27, say: The instrument generally defines the period of conversion, and the result cannot be before that time. When the conversion is by will there must be some equitable rule; but even then the testator may make the vesting depend upon a legal contingency. And so we are brought back to the question, of what Mrs. Washington has provided by her deed.
   Baldwin, J.

delivered the opinion of the Court.

The Court is of opinion that the land in the proceedings mentioned, conveyed by the deed of William Washington and Ann his wife, to William F. Abraham, as trustee, being the absolute fee simple estate of the feme, and there being no issue of the marriage, the condition of the property was such that the marital interest of the husband therein would have been determined by her death; and moreover, her disability of coverture would have prevented her from making any disposition of the subject during such coverture, amongst the objects of her bounty. The purpose, therefore, of the said deed, seems to have been to enable the female grantor to make provision for her husband in the event of his surviving her, out of the property, and to dispose of the rest of it in favour of her sisters and niece. The deed accordingly provides, 1st. That the feme might at any time during the joint lives of herself and husband require the trustee to make sale of the land, and pay over the proceeds to her, to be disposed of by her at her own will and pleasure. This would have enabled her to dispose of the proceeds amongst the objects of her bounty. But in the event of her death after such sale, and before such payment to her of the proceeds, the same would by operation of law have passed entirely to her surviving husband. And in order to meet that state of things, it was provided, 2dly. That in such event the proceeds should be paid to such persons as she should by last will and testament direct; and that if she should leave no will, then her surviving husband should be entitled to 2500 dollars out of such proceeds, and the residue thereof be divided amongst her sisters and niece. But inasmuch as the female grantor might die without having directed a sale of the property, it was requisite to provide in that event for the disposition thereof. And accordingly, the deed declares, 3dly. That in such event, the land should be enjoyed by her surviving husband during his life, and that after his death it should be sold, and the proceeds divided amongst her sisters and niece. But in order to meet any exigency of the surviving husband for money instead of land, the deed provides, 4thly. That if he should at any time within three years from her death desire a sale of the property, the same should be sold by the trustee within six months after being so required, so as to raise 2500 dollars in cash, to be paid to the surviving husband in lieu of his life estate in the land; and giving if advisable, a credit for the residue of the proceeds, which should be paid over according to the last will and testament of the feme, or in the event of her intestacy, be divided amongst her sisters and niece. And there is a general provision that if the trustee in the deed should be prevented by death or other disability from executing the trusts thereof, another trustee should be appointed in his stead for that purpose. And inasmuch as the death of the husband in the lifetime of the feme would have obviated all necessity for any of the provisions of the deed, by placing the property completely within the dominion of the feme, it is further provided, that in such event the estate conveyed should become void, and the feme reseized of her estate in fee.

And the Court is further of opinion, that the husband having within three years from his wife’s death elected that the land should be sold by the trustee, and to take 2500 dollars of the proceeds, in lieu of his life estate, the effect of such election was an equitable conversion of the land into money, upon the principle of equity treating that as done which ought to have been done, and preventing a trust from being defeated by accident or the want of a trustee; and the more especially as such election was in consequence of the trustee’s death, declared by a friendly suit between the surviving husband and the other cestuis que trust, and a sale of the land directed (without objection) to be made by a substituted trustee.

And the Court is further of opinion, that the said election of the husband ought not to be defeated by his death, there being nothing in the declaration of trust contained in the said deed to take the case out of the general principles aforesaid. On the contrary, it was made expressly the duty of the trustee to carry into effect such election of the husband, by a sale of the property, and unnecessary delay was guarded against by requiring him to do so within six months from the time of such election. There is no provision avoiding such election, in the event of the trustee’s being unwilling or unable to accomplish the sale in the lifetime of the husband; nor can any such intent of the grantors in the deed be inferred from another provision above mentioned, in the event of a sale directed by the feme in her lifetime, and her death before her collection of the proceeds, which was founded upon the reason peculiar to that state of things already suggested. Nor was there any obstacle to said election arising out of the circumstance that the husband before making the same had taken and assigned the obligation of a tenant of the property for a year’s rent thereafter to fall due; the only effect thereof being to subject his interest in the proceeds of sale to an equitable set off on that account, which was afterwards provided for by agreement of the adult parties to the said friendly suit.

The Court is therefore of opinion, that out of the proceeds of the sale of said land which has been made under the interlocutory decree of November 184.3, the appellant as executor of William Washington, deceased, is entitled in preference to the claim of the appellees, to receive the sum of 2500 dollars with interest thereon from the 29th of August 1843, till paid, but subject to a credit for the rents and profits of said land from the of June 1843, till the 1st of January 1844, to be given as of the last mentioned date; and that the Circuit court erred in not recognizing and enforcing such preferable right of the appellant.

It is therefore decreed and ordered, that so much of the decree of the Circuit court first above mentioned, as conflicts with the foregoing opinion and decree of this Court, be reversed and annulled, and the residue thereof affirmed, with costs to the appellant. And that the cause be remanded to the Circuit court to be proceeded in according to the principles above declared.

Decree reversed'.  