not only to wills, but also to instruments inter vivos, such as inarriage settlements, etc.1 3. Legacy to Heir Effect. A legacy to the heir will not defeat his right to claim a resulting trust in his own favor.2 4. Residuary Legacy-Effect. A trust in the undisposed proceeds of land converted merely for the purpose of the will, or to the extent of a legacy therefrom, which has lapsed, will result in favor of the heir even as against the residuary legatee. 3 5. Conversion Out and Out Effect. Where the will shows that the testator intended that the proceeds of his real estate should be treated as personal estate for all intents and purposes, and not merely for the purposes of the will, there is no resulting trust in favor of the heir. 6. Character of Trust Fund. Where the purposes of the conversion of land into money wholly fail, the land results to the heir as realty. But where the purposes of the conversion fail only partially, and a conversion is necessary for the purposes of the will, the heir takes the resulting trust as personalty. However, in case of a conversion of personalty into land, it has been held that a resulting trust arising from the partial failure of the purposes of the conversion passes to the next of kin as personalty subject to the payment of the testator's debts, even though an actual conversion has taken place. See, however, M'Cleland v. Shaw, 2 Sch. & Lef. 538, wherein it is said that the rule expressed as to legacies made a charge on land is exploded, and does not prevent a resulting trust in favor of the heir. 1. Contracts Inter Vivos. - Hewitt v. Wright, I Bro. C. C. 86; Anonymous, I Comyns' Rep. 345; Knights v. Atkyns, 2 Vern. 20. 2. Legacy to Heir. - Kellett v. Kellett, 1 B. &B. 533. 3. Residuary Legacy - Undisposed Surplus. Berry v. Usher, II Ves. Jr. 87; Maugham v. Mason, I Ves. & B. 416; Kellett v. Kellett, I B. & B. 533; Cooke v. Stationers' Co., 3 Myl. & K. 262; Colls v. Robins, 1 De G. & Sm. 131. Lapsed and Invalid Legacies. Amphlett v. Parke, 2 Russ. & M. 221; Collins v. Wakeman, 2 Ves. Jr. 683; Hutcheson v. Hammond, 3 Bro. C. C. 128; Spencer v. Wilson, L. R. 16 Eq. 501; Hamilton v. Foot, 6 Ir. R. Eq. 572. 4. Conversion Out and Out-Wills - England. - Ashby v. Palmer, 1 Meriv. 296; Barber v. Barber, 3 Myl. & C. 688; Brown v. Bigg, 7 Ves. Jr. 279; Court v. Buckland, 1 Ch. Div. 605; Durour v. Motteux, I Ves. 321; Green v. Jackson, 2 Russ. & M. 238; Johnson v. Woods, 2 Beav. 409; Kennell v. Abbott, 4 Ves. Jr. 802; Mallabar v. Mallabar, Forrest 78; Singleton v. Tomlinson, L. R. 3 App. 404; Wilson v. Coles, 6 Jur. N. S. 1003; Simmons v. Pitt, 28 L. T. N. S. 327. United States. (U. S.) 563. Michigan. Craig v. Leslie, 3 Wheat. - Shaw v. Chambers, 48 Mich. 355. 252, 29 Am. Dec. 48. A mere direction, however, that the proceeds of the land directed to be sold shall be considered as part of the testator's personalty and be taken to be personalty to all intents and purposes, will not necessarily work an out-and-out conversion. Robinson v. London Hospital, 10 In Proctor v. Ferebee, I Ired. Eq. (36 N. Car.) 143, 36 Am. Dec. 34, however, a direction for the sale of the testator's land and the division of the residue of the testator's estate after the payment of his debts and certain legacies was held to work an out-and-out conversion. Creditor's Deeds. Van v. Barnett, 19 Ves. Jr. 102; Biggs v. Andrews, 5 Sim. 424; Griffith v. Rickets, 7 Hare 299. 5. Land into Personalty Total Failure. Bagster v. Fackerell, 26 Beav. 469; Davenport v. Coltman, 6 Jur. 404, 12 Sim. 610; In re Richerson, (1892) 1 Ch. 379; Read v. Williams, 125 N. Y. 560, 21 Am. St. Rep. 748. 6. Partial Failure England. Bagster v. Fackerell, 26 Beav. 469; Burley v. Evelyn, 16 Sim. 290, 12 Jur. 712; Hatfield v. Pryme, 2 Colly. 204, 9 Jur. 838; Jessopp v. Watson, I Myl. & K. 665; Levet v. Needham, 2 Vern. 138; Smith v. Claxton, 4 Madd. 484; Taylor v. Taylor, 3 De G. M. & G. 190; Wilson v. Coles, 28 Beav. 215; Wright . Wright. 16 Ves. Jr. 188. Ireland. Hamilton v. Foot, 6 Ir. R. Eq. 572. 59. 7. Reason of Doctrine of Resulting Trust. The ground upon which the title of the heir rests, through the doctrine of resulting trust, is that whatever is not disposed of remains to the testator or trustor and partakes of the old use, as if it had not been directed to be sold,1 and therefore a resulting trust can only arise in case of wills when something is left undisposed of, either by some defect in the will or by some subsequent lapse which prevents the disposition intended by the testator from taking effect. And the question can also only arise between the real and personal representatives of the testator, and not between the representatives of a party taking under the will.2 1. Definition and Reasons of Doctrine. -- V. RECONVERSION Reconversion is that imaginary process by which a prior constructive conversion is annulled, and the converted property restored, in contemplation of equity, to its original state. The doctrine of reconversion arises from the principle that equity will not compel the execution of a trust against the wishes of the persons beneficially interested, and from the presumption, in case of a conversion by will, that the direction for the conversion was given for the benefit and convenience of the devisees and legatees, and that unless made imperative in terms, it was not intended to prevent the beneficiaries from taking the bounty of the testator except in the precise form in which the property would exist after the conversion.5 Conversion Out and Out Effect. It has been held that a conversion out and out deprives the beneficiary of the right to elect. 6 2. Election - -a. DEFINITION. - Election is the expression of the intention on the part of the beneficiary to take the constructively converted property in its actual quality.7 b. CAPACITY TO ELECT(1) In General. As a general rule, all persons sui juris, or under no disability inhibiting them from contracting in regard to their property, and who have the exclusive beneficial interest in the property constructively converted, may elect to take the property in its actual condition. (2) Persons Non Sui Juris — (a) Infants. Infants themselves cannot elect,9 1. Reasons of Doctrine. Craig v. Leslie, 3 Wheat. (U. S.) 563. 2. Ashby v. Palmer, 1 Meriv. 296. 3. Definition. Rapalje & Lawrence Law Dict., title Reconversion; Black's Law Dict., title Reconversion. Conversion is that "notional or imaginary process by which a prior constructive conversion is annulled and taken away, and the converted property restored, in contemplation of equity, to its original actual quality." Snell's Principles of Equity 160. Where the trust is countermanded by the subsequent owners, their act is denominated a reconversion." Adams's Equity (5th Am. ed.), p. 137. 4. Reasons of Doctrine. Craig v. Leslie, 3 Wheat. (U. S.) 563; Fluke v. Fluke, 16 N. J. Eq. 478. 5. Mellen v. Mellen, 139 N. Y. 210. 9. Infants. - Earlom v. Saunders, Ambl. 241; Carr v. Ellison, 2 Bro. C. C. 56; Seeley v. Jago, I P. Wms. 389; Chaplin v. Horner, 1 P. Wms. 483: Van v. Barnett, 19 Ves. Jr. 102; Hetzel v. Barber, 69 N. Y. 1; Carr v. Branch, 85 Va. 597. nor can the trustee or guardian elect for them, without the sanction of the court. 1 The court, however, may elect for the infant if it is for his benefit, such power being similar to the power to direct a conversion if for the benefit of the infant.2 (b) Lunatics. 4 5 Nor have lunatics the power to elect for themselves.3 (c) Married Women. - In the absence of statutory provisions, a married woman cannot elect to take the money instead of the land into which it is directed to be converted, though living apart from her husband, but may do so with the consent of her husband, or on examination in court. And though the husband may elect for his wife, yet equity will require a settlement for the benefit of the wife.8 6 (3) Undivided Interests. Where the proceeds of the land converted are to be divided among several persons, all interested in the distribution must join. in the election.9 But where the direction is for a conversion of money into land, one only of the beneficiaries may elect to reconvert as to his share. 10 (4) Distributee of Beneficiary. - The distributee of the beneficiary to whom the proceeds of the constructively converted land were to be paid cannot elect without showing that administration on the estate of the beneficiary is unnecessary.11 (5) Remainderman. A remainderman may make an election so as to bind his heirs and personal representatives, but of course cannot so elect as to affect the prior estates. 12 (6) Tenant in Tail. A tenant in tail not having the sole interest in money directed to be laid out in land cannot elect to take the money instead of the 1. Earlom v. Saunders, Ambl. 241. 2. Election by Court for Infant. Robinson v. Robinson, 19 Beav. 494; Turner v. Street, 2 Rand. (Va.) 404, 14 Am. Dec. 792; McDonald v. O'Hara, 13 Misc. Rep. (N. Y. Super. Ct.) 527. 3. Lunatics. In re Barker, 17 Ch. Div. 241; Ashby v. Palmer, 1 Meriv. 296; In re Wharton, 18 Jur. 299. 4. Married Women. Oldham v. Hughes, 2 Atk. 452; Cunningham v. Moody, 1 Ves. 174; Proctor v. Ferebee, 1 Ired. Eq. (36 N. Car.) 143, 36 Am. Dec. 34. See, however, Walker v. Denne, 2 Ves. Jr. 170. And Baker v. Copenbarger, 15 Ill. 103, 58 Am. Dec. 600, wherein the right of the wife to elect to take the land is recognized, provided the election is made under the same formalities required for a conveyance. Land Converted Allen, 15 Jur. 835. into Money. - Hobby v. 5. High v. Worley, 33 Ala. 196. 6. Hannah v. Swarner, 3 W. & S. (Pa.) 223, 38 Am. Dec. 754. 7. Standering v. Hall, 11 Ch. Div. 652; Pratt v. Taliaferro, 3 Leigh (Va.) 419; McClanachan v. Siter, 2 Gratt. (Va.) 280; Turner v. Dawson, So Va. 841. 8. Samuel v. Samuel, 4 B. Mon. (Ky.) 245. In Shallenberger v. Ashworth, 25 Pa. St. 152. it was held that when the husband elects for his wife to take the land, the wife becomes the owner in fee. 9. Undivided Interests Land into Money England. - Holloway v. Radcliffe, 23 Beav. 163; Brown v. Brown, 33 Beav. 399; Fletcher v. Ashburner, I Bro. C. C. 497; Biggs v. Peacock, 22 Ch. Div. 284. New Jersey. Fluke v. Fluke, 16 N. J. Eq. 478. New York. - Emens v. St. John, 79 Hun (N. Y.) 99; McDonald v. O'Hara, 144 N. Y. 566. Pennsylvania, — Allison v. Wilson, 13 S. & R. (Pa.) 330; Willing v. Peters, 7 Pa. St. 287; Beatty v. Byers, 18 Pa. St. 105; Shallenberger v. Ashworth, 25 Pa. St. 152; Evans's Appeal, 63 Pa. St. 183. Virginia. Harcum v. Hudnall, 14 Gratt. (Va.) 369; Com. v. Martin, 5 Munf. (Va.) 117. However, in Reed 7. Underhill, 12 Barb. (N. Y.) 113, it was held that one only of the beneficiaries in the proceeds of the land might elect so as to pass his interest in the land by con veyance. 10. Personalty into Land.- Seeley v. Jago, I P. Wms. 389. 11. Distributee.- High v. Worley, 33 Ala. 196. 12. Remaindermen. Meredith v. Vick, 23 Beav. 559; In re Skeggs's Settlement, 2 De G. J. & S. 533; In re Stewart, 16 Jur. 1063; Harcourt. Seymour, 15 Jur. 740; Dornford v. Dornford, 10 L. J. N. S. Ch. 341; Roberts v. Gordon, 37 L. T. N. S. 627; Meek v. Devenish, 6 Ch. Div. 566; Short v. Wood, 1 P. Wms. 470; De Vaughn v. McLeroy, 82 Ga. 687. Time of Election. Remaindermen may elect before the termination of the precedent estate. Harper 2. Chatham Nat. Bank, 17 Misc. Rep. (N. Y. Supreme Ct.) 221. Volume VII. land; but where he has the sole interest he may elect, as he can bar the entail and reversion.2 c. TIME OF ELECTION. Of course the election must be made before actual conversion.3 And where the right of the beneficiary to the proceeds of the converted land is dependent on a contingency, the election may be made before the happening of the contingency, so as to take effect when it happens. d. EFFECT OF ELECTION. - The effect of the election when properly made is to give to the property its actual character, and in case of land will render it subject to judgment liens on judgments recovered against the beneficiary, and to liability to sale on execution, and may also serve to prevent the failure of the bequest of the proceeds, which, regarded as a legacy of personalty, was in violation of the statute against perpetuities. e. WHAT CONSTITUTES ELECTION (1) By Act of Parties. Whether or not an election has been made depends upon whether the person entitled to the beneficial interest in the converted property has manifested an intention to give to the property its original character. This intention may be shown by acts or declaration of the parties. It is the expression of this intention, and not the mere right to make it, which changes the equitable character of the estate so as to give it its legal character at the will of the person entitled to the beneficial interest. And though courts have said that such intention must be clearly and unequivocally manifested, yet no distinct or positive act is necessary; a slight expression of intent may be sufficient. 10 - 8 1. Tenant in Tail. - Hardcastle v. Shafto, I Anstr. 67; Anonymous, 2 Anstr. 453; Collet v. Collet, Atk. II; Trafford v. Boehm, 3 Atk. 447; Warwick v. Edwards, 1 Bro. P. C. 207. 2. Trafford v. Boehm, 3 Atk. 447; Dornford 2. Dornford, 10 L. J. N. S. Ch. 341; Benson v. Benson, I P. Wms. 130; Short v. Wood, 1 P. Wms. 470; Amler v. Amler, 3 Ves. Jr. 583. See, however, Eyre's Case, 3 P. Wms. 13. 3. Time of Election. Osgood v. Franklin, 2 Johns. Ch. (N. Y.) 1, 7 Am. Dec. 513; Allison 7. Wilson, 13 S. & R. (Pa.) 330; Reed v. Mellor, 122 Pa. St. 635. 4. Election Before Happening of Contingency. Meek v. Devenish, 6 Ch. Div. 566. 5. Effect of Election. Stuck 7. Mackey, 4 W. & S. (Pa.) 196; Brownfield v. Mackey, 27 Pa. St. 320. 6. Greenland v. Waddell, 116 N. Y. 234, 15 Am. St. Rep. 400. 7. What Constitutes Election Intention Controlling. Crabtree v. Bramble, 3 Atk. 680; Cookson v. Reay, 5 Beav. 22; Cookson v. Cookson, 12 Cl. & F. 121; Craig v. Leslie, 3 Wheat. (U. S.) 563; Cropley v. Cooper, 7 D. C. 226. Parol Declaration Is Sufficient. Chaloner v. Butcher, cited in Crabtree v. Bramble, 3 Atk. 685; Edwards v. Warwick, 2 P. Wms. 171. In Bradish v. Gee, Ambl. 229, however, there are dicta to the contrary. 8. Craig v. Leslie, 3 Wheat. (U. S.) 563; Yonkers Sav. Bank v. Kinsley, 78 Hun (N. Y.) 186. 9. How Evidenced. Beatty z. Byers, 18 Pa. St. 105; Evans's Appeal, 63 Pa. St. 183; Harcum v. Hudnall, 14 Gratt. (Va.) 369. 10. Slight Expression of Intention Sufficient. Bradish v. Gee, Ambl. 229; Prentice v. Janssen, 79 N. Y. 478. Having money directed to be laid out in land paid to the beneficiary shows an election. Chandler v. Pocock, 16 Ch. Div. 648. Preservation by the beneficiary of the prop erty in its actual state shows an election. Dixon v. Gayfere, 17 Beav. 433. Laying out only a portion of the fund to be laid out in land and the retention of the balance sufficiently show an election. Pulteney v. Darlington, 1 Bro. C. C. 223. Bill to Enjoin Sale of Land. However, filing a bill by beneficiary to enjoin the sale of the land does not necessarily show an election. Carr v. Branch, 85 Va. 597. Action to Recover Land. An action, however, by the beneficiary to recover possession of the land shows an election, so as to render the subject-matter of the action realty. De Vaughn v. McLeroy, 82 Ga. 687. Ignorance as to the Effect of a Failure to Elect will not prevent an election where it clearly appears that it was the intention of the beneficiary to treat the property as having its legal character. Harcourt v. Seymour, 15 Jur. 740. Retention for a Short Time of the Possession of the Land directed to be converted is insufficientto show an election. Harcum v. Hudnall, 14 Gratt. (Va.) 369: Kirkman v. Miles, 13 Ves. Jr. 338. But see Davies v. Ashford, 15 Sim. 42, where it was held that where the surviving husband, who was entitled to the exclusive beneficial interest in land articled to be sold, secured possession of the title deeds and of the land until his death, there was an election. And Griesbach v. Fremantle, 17 Beav. 314, wherein it was held that retention of the land for sixteen years showed an election. Possession by one only of the persons beneficially interested does not show an election. Beatty v. Byers, 18 Pa. St. 105. Leasing Land is sufficient to show an election to take it as land. Crabtree v. Bramble, 3 Atk. 680; Mutlow v. Bigg, I Ch. Div. 385: In re Gordon, 6 Ch. Div. 531; In re Davidson, II Ch. Div. 341. See, however, Harcum v. Hudnall, 14 Gratt. (Va.) 369. Conveyance of the Land is an election. Ridge (2) By Act of Law Property "At Home." As a general rule, where the possession of the equitably converted property and the right to it meet in the same person—that is, where there is no other person than the one who has the actual possession who has any interest in retaining the fictitious character of the estate the property is reconverted to its legal character.1 (3) Burden of Proof. — The burden of showing an election is on the party alleging it.2 CONVERT. To "convert" means to change to something else.3 way 7. Underwood, 67 Ill. 419; Swan V. Goodwin, 2 Duv. (Ky.) 299; Reed 7. Underhill, 12 Barb. (N. Y.) 113. And also a conveyance between the beneficiaries. Beal v. Stehley, 21 Pa. St. 376; Twaddell's Estate, 9 Phila. (Pa.) 316. Mortgage. Giving a mortgage on the land is an election. Gest v. Flock, 2 N. J. Eq. 108. Devise. And also a devise by the legatee. Burr 2. Sim, I Whart. (Pa.) 252, 29 Am. Dec. 48. Rescission of a Contract of Sale after the death of the vendor is a reconversion. Leiper v. Irvine, 26 Pa. St. 54. Changing Investment of money directed to be laid out in land is an election. Bradish v. Gee, Ambl. 229; Harcourt v. Seymour, 15 Jur. 740; Lingen v. Sowray, 1 P. Wms. 172. See, however, In re Stewart, 16 Jur. 1063; Matter of Pedder's Trusts, 5 De G. M. & G. 890. 1. Property "At Home." - Trafford v. Boehm, 3 Atk. 440; Pulteney v. Darlington, 7 Bro. P. C. 530, affirming 1 Bro. C. C. 223; Wheldale v. Partridge, 8 Ves. Jr. 235; Oliver v. Brown, 80 Me. 542; Forman v. Marsh, II N. Y. 544. In Foreman v. Foreman, 7 Barb. (N. Y.) 215, Mason, J., said: When the law has impressed real properties and uses upon moneys, it is necessary, in order to put an end to that impression, that it be shown either that the party entitled to the property and having a right to elect in what shape he will take it has declared that election, or done some act denoting his intention in relation thereto, or the property must, according to the expression used in some of the cases, be at home; that is, the person being the absolute owner must have in himself the entire qualification of heir and executor. He must not only have the jus in re, but no other person must have an outstanding jus ad rem. In that case, if he makes no declaration of his intention in relation to it, it shall go according to the quality in which it was left at his death." In Chichester v. Bickerstaff, 2 Vern. 295, money by marriage settlement was articled to be laid out by the husband in land for the benefit of the husband and wife for life, with remainder to the husband. The wife died without investment, and the husband also within a few days after her death. It was held that the money was reconverted. See, however, Lechmere v. Carlisle, 3 P. Wms. 221. means a structural conversion, and not merely exposing goods for sale." Woodf. L. & T. 667, citing Wilkinson v. Rogers, 2 De G. J. & S. 62, 12 W. R. 119, 284. But it would seem that that case supports the reverse of the proposition stated in Woodfall. It is only reported on an application for an interim injunction; and in dissolving an injunction which had been granted by the Master of the Rolls, the lord justices expressly reserved an actual decision till the hearing; but they also intimated their opinion that the conversion into a shop might be effected without any structural change. Turner, L. J., said: I think the premises may be converted either by user or by an alteration of structure." Stroud's Jud. Dict. See generally the title BUILDING RESTRICTIONS, vol. 5, p. 2; LEASES. Embezzlement. A statute inflicted a penalty upon an officer who should convert to his own use, or make way with, or secrete, public moneys. It was held that an indictment charging that an officer did unlawfully and feloniously make way with, secrete, and convert to his own use, etc., charged but a single offense. The court says: "Here the charge is, did make way with, secrete, and convert to his Own use. Is there any repugnancy here? The statute covers conversion in any manner whatever.' We are not aware of any technical significance the words' make way with,' 'secrete,' and convert have, that would render them repugnant or inconsistent; and either of them might characterize an embezzlement, or all of them can properly unite in designating a particular embezzlement. One can make way with another's property by secreting it, and at the same time make a secret investment of it for his own benefit, thus fully meeting the legal view of a conversion to his own use. This court, in State v. Flint, 62 Mo. 393, did not deem the words make way with' and secrete repugnant. If they are not repugnant to each other, they certainly are not to the expression convert. Indeed, we think the statute in this case makes the word convert generic, and includes within it the other two expressions as modifiers." State v. Manley, 107 Mo. 364. Convert and Embezzle. (See the title EMBEZZLEMENT.) In Hamilton v. State, 46 Neb. 284, it is said: "The terms' shall embezzle,' convert to his own use' (found in section 121 of the Nebraska Criminal Code), are synonymous; for an agent to convert to his own use is made embezzlement by this statute; but embezzlement is the fraudulent' appropriation by an agent or bailee of the property of another. Leonard v. State, 7 Tex. App. 417." |