
    INEZ I. GERLING et al., Executors, vs. BENJAMIN F. WYAND et al.
    
      Equitable Reconversion — Evidence of Election.
    
    The party entitled to the proceeds of land directed to be converted by sale may elect to take the property in its original actual state, and thereby annul the prior conversion, and so reconvert the gift and hold it in its natural quality of land. p. 121
    One who is -the only party beneficially interested in the property involved, and who is sui juris, or at least not subject to any incapacity which would prevent him from effectively dealing with his own property, may make his election to reconvert by an express declaration of his intention in words, or by any decisive act or writing which shows a clear intention to possess the property in its natural form. p. 121
    That one entitled to the entire proceeds of a sale of land, which testator directed to be made by his executor, refrained from procuring administration on testator’s estate so that a sale might be effected, made immediate entry on the land and received the rents and profits, and retained the land until her death, over seven years later, showed an election on her part in favor of reconversion. p. 122
    
      Decided January 15th, 1925.
    
    Appeal from the Orphans’ Co'Unt of Washington County.
    Proceedings by Inez I. Gerling, William D. Van Valkenberg, and the Maryland Surety and Trust Company, executors of Anna M. Van Valkenberg, deceased, for the sale of certain land. Erom an order sustaining exceptions by Benjamin F. Wyand and Catherine Wyand as purchasers, to- a sale made by said executors under a testamentary power, the executors appeal.
    Reversed.
    • The cause was argued before Bond, C. J., Ubneb, Ajdkths, Oeeutt, Digges, Pabice, and Walsh, JJ.
    
      J. A. Mason, with whom were W. P. Lane, Jr., and R. H.Sweeney on the 'brief, for the appellants.
    
      Scott M. Wolfinger, submitting on brief, for the appellees.
   Parke, J.,

delivered the opinion of the Court.

The appellees, Benjamin F. Wyand and Catherine Wyand, excepted to the ratification of the sale of a farm to them by the appellants, the executors of Anna M. Van Valkenberg, on the ground that the testatrix did not hold it by a good title at the time of her death, and the Orphans’ Court of Washington County sustained the exception. The question for review is presented by an agreed statement, and by the other facts contained in the brief of the appellants, which counsel for the respective parties have requested shall be taken as part of the record.

The title of Anna M. Van Valkenberg was derived from the will of her father, William W. Walker, who died in Washington County in July, 1889, owning in fee-simple the farm and other real estate in Washington County, Maryland. ELe was survived by bis widow, Anna M. Walker, and bis daughter, Anna M. Van Valkenherg, who was his only heir at law. The will of the testator devised his real and personal estate to his wife for her life or widowhood, with full power, during the period of her enjoyment, to sell and convey absolutely or to mortgage or lease any or 'all of bis property, and to invest tbe proceeds with t-he same absolute control of tbe property as tbe testator enjoyed while living, and also' with tbe privilege of consuming soi much of bis estate as she might desire.

The fourth paragraph of the will conferred power upon the executrix to sell and convey any part of his realty, if it should become necessary in the settlement of the estate, but no occasion for the sale of the land arose. The claims of bis „ creditors, after tbe required notice bad been given, were paid, and tbe estate was settled in due course by bis executrix, who was the widow.

Tbe widow did not marry, and died on February 2nd, 1912, intestate, with Anua M. Van Valkenberg surviving her as her only child and heir at law, and without having leased, mortgaged, sold or conveyed any of his land.

By the second item of the will the property in question, on the death of the widow without remarrying, was given by tbe testator in these words:

“to my children, then living, and to the issue of such of my children as may have died; the issue of said deceased children to take only the share or respective shares which the parent or respective parents, if living, would have taken. But in the event that at the time of her death, unmarried, none of my children or their descendants, he living, then I will and direct that all of such unconsumed property go to my brothers and sisters, then living, and to the issue of such of my deceased brothers arid sisters as may have died, the issue of such deceased brothers or sisters to take only the share the parent would have received, if living.”

The fifth item of the will provided for a sale of the realty in this form:

“Item 5. It being my will and desire that on the death or remarriage of my wife all of my property, then remaining, he sold, and the money distributed as hereinbefore indicated in each of said' contingencies, I hereby clothe my executrix, as also any other person whom the court may appoint to settle said estate, with full power and authority to sell the same and execute the conveyances necessary.”

On the death of his widow in 1912 there was no further administration on his estate. All of his property had been given by the terms of the will to Anna M. Van Valkenberg, and' she took full and complete possession of the land immediately upon her mother’s death, -and, from that time until her own death in 'October, 1919, Anna M. Van Valtenberg held this real estate and the rents and profits thereof, in the exercise and enjoyment of an absolute and beneficial possession and ownership; and upon her death testate, she directed it to be sold by her executors for the purpose of distributing it, along with all her other property, between her son and daughter. These two children and the Maryland Surety and Trust Company are her executors, and the appellants, having sold the land in-controversy to the appellees.

The Orphans’ Court of Washington Oounty was convinced that the fifth item of the wil-1 was mandatory and irrevocably converted the testator’s realty into personalty, and that, therefore, -the sole beneficiary under the will at the death of the widow could not take the title to the land, but only a fixed interest in the proceeds thereof as personalty. If this opinion he correct, there must he a further administration on the estate of William W. Walker to make .a sale of the land and a distribution of its proceeds, under the jurisdiction of the orphans’ court.

While it is quite true that upon the equitable principles of conversion the direction in the will, that the real estate be sold on the death or remarriage of the widow for the purposfe of distribution, worked a constructive change of the realty into personalty, yet, on the facts, -this ease is governed by the correlative doctrine of reconversion, whereby the party entitled to the proceeds of such sale of land may before the sale thereof elect to take the property in its original actual state, aud thereby annul the prior conversion, aud so reconvert the gift aud hold it in its natural quality of laud. Snell’s Equity, chapter 10; 2 Woerner on American Law of Administration (3rd Ed.), secs. 342, 728; 1 Jarman on Wills (6th Ed.), pp. 592-596, 562-568; 1 Williams on Executors (7th Am. Ed.), pp. 783 (n), 801; 2 Story’s Equity (14th Ed.), sec. 1095; 3 Pomeroy's Eq. Juris. (3rd Ed.), secs. 1175-1177, and see Small v. Marburg, 77 Md. 11, 20-21; Booth v. Eberly, 124 Md. 22, 27; Cronise v. Hardt, 47 Md. 433, 436-437.

If the party is the only one in beneficial interest in the property involved, and he is sui jvxris, or at least not subject to any incapacity which would prevent him from effectively dealing with his own property, he may make his election by an express declaration of his intention in words, or by any decisive act or writing which shows a clear intention to possess the property in its natural form. Supra. All these requisites were present in the ease at bar.

At the death of her mother, Anna M. Yan Yalkenberg had the personal capacity, and was the owner of the whole absolute interest in possession in the land to he sold, and so she alone had the privilege of an election to take the land itself, and this election to reconvert she sufficiently made, as was clearly and unquestionably manifested: ■(!) by not administering or procuring an administration on her father’s estate so as to exercise the power of sale of the land that was conferred by his will; (2) by mating an immediate entry on the land, and thereafter leasing it and receiving the rents and profits thereof; and (3) by retaining the land until her death, when by virtue of 'the provisions of her will it was sold by her executors for distribution among the beneficiaries of her bounty. Supra.

The circumstances of this case exemplify the practical wisdom of the doctrine of reconversion.

. The legal title of the realty under consideration had devolved by law upon the only heir at 1-aiw, Anna M. Van Valkenberg, who held this bare legal title in trust for herself, as the sole owner in possession of the equitable or beneficial interest in the proceed^ of sale of this self-same realty, until the exercise of the power of sale by an administrator de bonis non cum testamento annexo, who would be herself, by favor of law, subject to the nomination by the orphans’ court, and whose single function would be to sell and to transfer the net proceeds, from herself as administratrix d. b. n. c. t. a. to herself as sole legatee. By reconversion equity has found and formulated a rule which is only a. consequence of “the right which every absolute owner or donee has- to dispense with 'Or forbid the execution of any trust in the performance of which he alone is interested.” Supra.

As a necessary consequence of our views, the lower court was in error in not ratifying the sale, and its order of June 20th, 1924, sustaining the exceptions, must be reversed.

Order reversed, and cause remanded for an order to be passed conforming to this opinion, with costs to be paid by the appellees.  