
    [Chambersburg,
    October 31, 1825.]
    ALLISON, Executor of HENDERSON, against WILSON’S Executors.
    IN ERROR.
    Testator orders his executors, after the death of his widow, to sell his real and personal estate, and divide the money equally amongst his four children. On a sale of land being made by an administrator de bonis non, after the death of the widow, such administrator is entitled to receive the money, and not a creditor who had obtained judgment against a son before the sale.
    This was an amicable suit, brought in the Court of Common Pleas of Huntingdon county, to try the right to money paid into court, in the name of Robert Wilson's executors, defendants in error and plaintiffs below, against Robert Jlllison, executor of John Jl. Jlnderson deceased, the defendant below and plaintiff in error, who was a stakeholder, the administrator de bonis non of Ludwig Lowman deceased, being the real defendant. The plaintiffs below claimed the money on the one hand, and the administrator de bonis non of Ludwig Lowman, on the other.
    
      Ludwig Lowman died in 1797, leaving a widow and four children, after making his last will, by which he made the following disposition of his real estate, having first giving some pecuniary legacies, and ordered the payment of his debts.
    “ It is my will that my beloved wife Elizabeth, shall have, hold, and enjoy, all my real and personal estate whatsoever and wheresoever the same may be, and have the use thereof during her widowhood. Item, it is my will and I do order and direct that my hereafter named executors, or the survivor of them, shall and do after the decease of my said wife Elizabeth, sell and dispose of all my estate real and personal, either by public or private sale, as my said executors or the survivors of them shall deem most beneficial. And it is further my will, and I do order and direct that the monies arising by or out of such sales, shall he divided into four equal parts or shares. And I do give and bequeath one equal fourth part or share thereof unto my son Lewis Lowman, and one other equal fourth part or share thereof I do give and bequeath unto my son George Lowman. And one other equal fourth part or share thereof I do give and bequeath unto my son Frederick Lowman. And the remaining equal fourth part or share thereof I do give and bequeath unto my daughter Mary, wife of John Hubley. And I do hereby nominate, constitute, and appoint my said wife Elizabeth, my son Lewis Lowman, my son George Lowman, and my son-in-law John Hubley, and the survivors or survivor of them to be the executors of this my last will and testament. And I do hereby give full power and authority unto my said sons Lewis Lowman and George Lowman, and my son-in-law John Hubley, and the survivors or survivor of them, as executors of this my last will and testament, to make, execute, seal, and deliver such deeds or conveyances unto the purchaser or purchasers of my said real estate, as will vest such estate unto the purchaser or purchasers thereof as fully and freely as I now have, and hold the same.”
    
      George Lowman died in the year 1800, having devised all his real and personal estate to Lewis Lowman. Judgment was obtained by Robert Wilson against Lewis Lowman, in February, 1803, which was revived by scire facias in January, 180S, and a fieri facias was issued and returned nulla bona. In August, 1821, there was another revival by scire facias, and a fieri facias issued on which Lewis’s interest in the land conveyed by the will was levied on, and the debt, interest and costs, paid into court by Clapper, the terre-tenant.
    After the death of the widow, and of all the executors named in the will, administration de bonis non, cum testamento annexo, to the estate of Ludwig Lowman, had been granted to Joseph Hubley, who, prior to the levy by Wilson, had under the authority in the will, sold the land to Clapper, by whom as much of the purchase money was due as was now paid into court: and now Hubley, as such administrator, claimed the money in court.
    The court below charged the jury that the plaintiffs below had a lien by virtue of their judgment, and that they were entitled to the money, and not the administrator de bonis non, and the jury found accordingly.
    Exception was taken to the court’s opinion.
    
      Burnside, for the plaintiff in error,
    now contended that the administrator de bonis non, was entitled to the money. By the act of assembly of the 31st of March, 1792, Purd. Dig. 207, where a naked authority is given to executors to sell lands, they take and hold the same interest therein and have the same powers and authorities as if devised to them to be sold; and the power to sell is by the act of the 12th of March, 1800, Purd. Dig. 208, in case of the death of the executors, vested in the administrator, de bonis non. And he relied on the established principle, that lands devised to be sold, and converted into money were to be considered as money, and vice versa. Doughty v. Bull, 1 P. Wms. 320. Yeates v. Compton, 2 P. Wms. 309. Trelawny v. Booth, 2 Atk. 38. Sweetapple v. Bindon, 2 Vern. 53. Fletcher v. Ashburton, 2 Vern. 53. Craig v. Leslie, 3 Wheat. 563. Bogart v. Perry, 1 Johns. Ch. 52.
    
    
      M‘Mullen, contra.
    In this case there was a naked authority to the executors to sell and the land descended to the heirs. Pow. Dev. 293. It is denied, that by the act of the 31st of March, 1792, the legal estate vested in the executor. It only enables them to support certain actions. Besides, the act does not apply to cases where the land is devised to other persons, and here the estate was devised to the testator’s wife for life. Under the decisions of this court, Lewis Low-man had such an equitable interest in this land as might be bound by a judgment against him. He had a right to elect to take land instead of money. After his mother’s death he was entitled to his share of the rents and profits. The land has been sold by the administrator, and is now in court, subject to the order of the court. He referred to Humphreys’s Lessee v. Humphreys, 1 Yeates, 427. 2 Dall. 223, S. C. 2 Yeates 24. Carkhurst v. Anderson, 3 Binn. 4. Evans v. The Commonwealth, 2 Serg. & Rawle. 441. 4 Binn. 225. Ely v. Beaumont, 5 Serg. & Rawle, 124. Awater v. Mathiot, 9 Serg. & Rawle, 404. Wilson v. Hamilton, ib. 424. Duncomb v. Duncomb, 1 Johns. Ch. 508.
   The opinion of the court was delivered by

Gibson, J

In equity, no rule is of more frequent occurrence in practice, than that by which land directed to be converted into money, or money directed to be converted into land, is to be treated as that species of property into which the one or the other is so directed to be converted. For the application of this rule to particular eases, it is sufficient to refer to the opinion of Judge Washington, in Craig v. Leslie, where the learning on the subject is ably and lucidly staled. What we have to determine at present, is, whether the case before us is brought within it by the particular circumstances disclosed in the evidence, and the charge of the court. Ludwig Lawman, the testator, having devised his real and personal estate to his wife during her widowhood, directed his executors to sell it after her death, and divide the money arising front the sale equally among his four children. Lewis his eldest son acquires the share of one of his brothers, after which the judgment in question is obtained against him: then the land is sold first in execution of the power by the administrator de bonis non, with the will annexed, and afterwards to the same purchaser by the judgment creditor of Lewis, under an execution on his judgment: the purchaser pays into court the balance due by him on his purchase from the administrator: and the question is, whether the administrator or the judgment creditor is entitled to it.

The rule in equity already mentioned is not controverted. But it is said that in a case of this kind, the fee descends to the heirs of the testator till the land is actually converted into money; and this notwithstanding the act of the 31st of March, 1792, in which it is provided, that where a naked power to sell is given to the executors, they shall have the same interest in the land at if it were devised to them to be sold; or in other words, a power coupled with an interest. It is clear from this act, that, unless where the contrary is specially directed by the testator, the executors take the legal estate, and nothing descends. But even if this were otherwise, it would not vary the result. Suppose the legal estate to descend, and remain subject, as it undoubtedly would, to the power to sell. It would doubtless be bound in the hands of the heir by a judgment against him: but for how much? Surely, for just as much as descended to him; which would be all that was not disposed of by the will. The judgment creditor could sell, and the purchaser could obtain no. more than what vested in the debtor a$ heir. Then when the estate of the purchaser comes to be div.ested by a sale in execution of the power under the will, what right has he, in virtue of having owned the descended part of the estate, to the money arising from that part of it which never descended, but passed under the will as a personal bequest? Neither the judgment creditor, nor the purchaser in his stead, is the representative of Lewis Lowmah, to every intent. It is a maxim that where two rights meet in the same person, they are to be viewed as if they existed in different persons. Now if a different person from Lewis Lowman the heir, were entitled under the will, how could a judgment creditor of Lewis Lowman claim any thing under the will? Hence it is evident that by virtue of a lien on the land of Lewis Lowman the heir, his judgment creditor will not be entitled to the personal interest of Lewis Low-man the legatee. The argument attempted to be raised on this ground therefore fails.

The remaining argument is, that where the whole beneficial interest in land or money directed to be converted, belongs to the person for whose use it is given, equity will permit him to take his interest in Uae shape of land or money, at his election. But against the application of this principle to the case before us there are three decisive objections. In the first place Lewis Lowman, or those who represent'him, have an undivided interest in the subject matter of this controversy, and cannot eompel those who were associated in interest with him, to take in land what was bequeathed to them in money; and as the executors could not execute their power by halves, their business was to execute it entirely, or with the consent of all parties, or not at all. In the second place, be Lewis Lowman’s right of election what it may, it is sufficient that neither he nor any one representing him, has ever exercised it. This right of election must be exercised before the property is converted; andpntil it be actually exercised, the property bears the same character, and remains subject to the same rules of transmission to representatives as if the conversion were actually made; and for the accuracy of these several positions I again refer to Craig v. Leslie, and the authorities there cited. In the last place, the judgment creditor of Lewis Lowman, is not his representative for the purpose of determining his election. He would have represented him only in his character of heir of the testator, in ease any estate had descended on which the judgment might have operated; but he could, in no shape represent him in respect of an interest under the will, which vested in him by title paramount to the judgment. For these reasons the judgment of the court below is reversed.

Judgment reversed.  