
    Roberts and Wife vs. Jackson’s Heirs.
    
    A guardian or executor has no power to change the personal property of an infant into realty. If it is done, and the infant' dies before 21, a court of equity considers it as personal property, and will divest the legal title out of the heirs at law, and vest it in the distributees.
    Craven Jackson sold lot No. 27, in the town of Nashville, to Hicks, taking his notes for the money, and a mortgage on the lot to secure their payment. Craven Jackson dying intestate, his widow Elizabeth Jackson, and the defendant, M’Nairy, administered on his estate. Hicks being also indebted to Claiborne, executed a mortgage to him for the same lot. ’ Claiborne filed a bill, and obtained a decree foreclosing his mortgage. The lot was sold and Claiborne became the purchaser. Finding that he could make nothing out of the lot, he proposed to the administrators to give up the notes on Hicks, who was insolvent, and that he would convey the lot to the said Elizabeth, and Carroll Jackson, an infant and only child of Craven Jackson, deceased. This was agreed to, and the notes on Hicks were given up, and the lot No. 27, was conveyed by Claiborne to Elizabeth Jackson and Carroll Jackson. Carroll Jackson died during infancy, without issue. Elizabeth Jackson, his mother, intermarried with Roberts, who took out letters of administration on his estate, and filed this bill against the administrator of Craven Jackson, and the uncles and aunts of Carroll Jackson, who claim the lot as his heirs at law.
    
      F. B. Fogg and G. S. Yerger, for complainants.
    By the sale of the lot in the life time of Craven Jackson, he turned it into personal property; and a guardian, or executor, or administrator, has no power to change personalty into real property; and if it is done, a court r J r r j 7 7 of equity will still consider it personalty, and distribute it accordingly. 1 Maddox’s Ch. 339. 1 Dickens’ Rep. 145. 1 Yernon’s Rep. 434. 2 Yernon, 192. 2 Kent’s Com. 188. 3 Dessauseure, 18. 3 P. Wms. 101. 4 Bro. Ch. Rep. 235. 11 Yesey, 257. 6 Maddox’s R. 100.
    Where a change of this kind is effected by the decree of a court of chancery, it does not change its nature until the infant arrives at the age of twenty-one, and he then elects to take it according to the decree. 6 Yesey’s Rep. 6. 2 Atkins, 413.
    Washington, for defendants.
    Defendants resist a decree on the following grounds:
    1. The giving up of Hicks’ notes, by the administrator of Craven Jackson to Hicks, and taking a conveyance of the lot from Claiborne, was a payment or satisfaction of those notes. These notes being assets in the^ hands of the administrators, they had a right to make that disposition of them.
    2. When the notes were paid or satisfied, that was a satisfaction of the mortgage which was held by Craven Jackson. There was then, nothing remaining in the shape of personalty. The conveyance from Claiborne, who then had the title to the property, invested Carroll Jackson with the legal title in an undivided half, of which he died possessed, and which descended to the defendants.
    3. There is no fraud or mistake alleged, or proved, or pretended, in procuring the arrangement respecting the giving up of the notes and the taking a conveyance from Claiborne. In fact, Carroll Jackson was not above five or six years old, and was wholly incapable of committing a fraud. At the time of said arrangement, the said Elizabeth Jackson, (now Elizabeth Roberts,) and the said Carroll Jackson, were the sole distributees of the personal estate of the said Craven Jackson, and in equal portions. It was the promise of the said Elizabeth, as one of the administrators, to make distribution; and the said disposition of the notes and arrangement consequent upon it, ought to be considered as an act of distribution to the extent of the notes. It was undoubtedly so intended at the time, nor would that intention ever have been altered, or that distribution ever have been interfered with, had not the said Carroll Jackson have died, and the said Elizabeth have married, whereby it became her interest to re-convert the lot into personalty, in order that she might succeed to it as distributee of her child, when she could not have inherited it from him as realty. Were the child alive, and were this bill filed against him with the same object, no ground can be perceived upon which it ought to be sustained. If the child’s rights were not liable to be affected by such a bill, or by such a state of facts and circumstances, neither are the rights of his heirs; for, such as they existed in the child, were they cast by the law upon the present defendants.
    4. The said arrangement was a cancellation of the contract, by which realty was originally turned into personalty, and a restoration of that personalty to its primitive character of realty.
    5. The construction for which I contend, is in conformity to the spirit of our act of descents; by which a mother is excluded from inheriting land from her child, which did not descend through her, but by purchase on the part of the father, or through the ancestors ex parte paterna.
    
   Green, J.

delivered the opinion of the court.

Craven Jackson sold the lot in question in his life time, and thereby turned it into personalty. The notes, as personal assets, came into the hands of the administrators, and so must continue. The adminis- . . , .. trators had no power to convert it into realty; and it it be done, the real property will be considered in equity as personalty, and distributed accordingly.—1 Mad. Ch. 339. 2 Kent’s Com. 188. 3 Dessauseure, 18. Vesey, 257.

If Carroll Jackson had lived till the age of 21 years, he would have had a right to elect, whether he would take the lot or the money which was paid for it, with interest. But having died, there is no one to make the election; for the interests of his heirs, and next of kin, are adverse to each other. The case must then be settled in reference to the powers the administrators had to change the character of the property; and as we have before seen they had no authority in law to do so, this lot must be regarded as personalty, and as rightfully belonging to these complainants.

Decree affirmed..  