85 Va. 597 | Va. | 1889
(after stating the case), delivered the opinion of the court.
The testator, after making sundry specific bequests, says: “I desire the residue of my estate, real and personal, to he sold by my executors * * at such time as they may deem best,” and the proceeds to be divided, etc. This language clearly manifests the intention of the testator, and amounts to an imperative direction that a sale he made. The question of conversion, according to all the authorities, depends on the intention of the testator, which need not he expressly declared, hut may he derived from the general effect of the will. Hence, it has been held that where a testator authorizes his executors to sell real estate, and it is apparent from the general provisions of the will that he intended such estate to he sold, the doctrine of equitable conversion applies, although the power of sale is not in terms imperative. To the same effect is the decision of this court in Ropp v. Minor, 33 Gratt. 97, in which case Judge Burks, speaking for the court, said that the intention to convert may he implied without express words directing a sale. It is sufficient, he said, if such intention he clear.
The doctrine of equitable conversion, therefore, applies to the present case, and hence the tract of land called “ Burlington,” which constitutes in part the residue directed by the testator to he sold, is to he considered, for the purposes of the will and of this case, as personal estate. This would seem to he too plain to admit of doubt; for since the case of Fletcher v. Ashburner, 1 Bro. C. C. 497 (I Lead. Cas. Eq. 826), and even before that case' was decided, nothing has been better settled than that money directed to he employed in the purchase of land, and land
All this rests upon the familiar principle that equity regards that as done which is directed or agreed to be done, where nothing has intervened which ought to prevent a performance. 3 Pom. Eq. sec. 1159; Craig v. Leslie, 3 Wheat. 563; Tazewell v. Smith’s Adm’r, 1 Rand. 313; Pratt v. Taliaferro, 3 Leigh, 419; McClanachan v. Siter, Price & Co., 2 Gratt. 280; Ropp v. Minor, 33 Gratt. 97; Effinger v. Hall, 81 Va. 94; Phillips v. Ferguson, ante, p. 509.
This being so, the contention of the appellees that the decree of the county court of Dinwiddie county is’void under which the «deed of trust on “Burlington” was executed, which is the subject of this controversy, cannot be sustained. The decree was rendered in 1872 in a suit to which there were proper parties, and of which the court undoubtedly had jurisdiction. Indeed,
It seems that shortly before the decree was rendered, the land had been decreed to be sold in a creditor’s suit in the hustings court of Petersburg to pay debts of the testator, and that in this state of things application was made by the trustee to the county court for authority to borrow a sufficient sum of money, to. be secured on the land, to pay the debts, and thus avoid a sale, which, in the then state of the market, it was supposed would he injurious, if not disastrous, to the interests of the cestuis que trust. The authority was granted, and the deed of trust above-mentioned was accordingly executed, whereby a loan of $2,500 from the Life Association of America, of which corporation the appellant is the statutory trustee, was secured on the Burlington farm. The money was paid over to the counsel for the creditors, and every dollar of it applied, as the record shows, to the payment of debts for which the land, as a part of the assets of the testator’s estate, was liable. Nor is there any proof that the arrangement was not an- advantageous one for the cestuis que trust. Indeed, had it not been made, it is quite probable the land would have been sacrificed at a forced sale under the decree above-mentioned. But be that as it may, the deed was executed with the sanction of a court of competent jurisdiction, obtained without collusion or fraud, and is not now to be questioned. 2 Perry, Trusts (3d ed.), sec. 476, a.
It appears that soon after the testator’s death, the land was conveyed by the executors to William A. Bragg, who on the same day conveyed it to R K. M. Friend and Miles B. Branch, trustee, in the proportion of 259-470 to the former and 211-470
It is contended, however, for the appellees that filing the bill in the present suit is an election to take the property as land by the adult complainant, Edwin B. Branch, who attained his majority in 1882, and who also sues, as next friend, for the infant cestuis que trust—his mother, Mrs. Branch, being dead— and that the court may elect for the infants. But to this position the answer is twofold, namely: (1) That the bill is not drawn upon that theory, and (2) that no election can be made to the prejudice of the deed of trust creditor, who also occupies the position of a bona fide purchaser for value (Shurtz v. Johnson, 28 Gratt. 667), protected' by a decree of a court of competent jurisdiction. In other words, the deed of trust, which was valid when executed, cannot be affected by any subsequent election, but any such election must be made in subordination to the deed.
The charge that the life association had notice of the alleged devastavit of the executors, and conspired with them to defraud the estate, as to which much was said in the argument at the bar, is utterly without proof to sustain it. Indeed, the vague charge of fraud in the bill seems to rest upon no other ground than the allegation that when the loan was made, the association was insolvent, and knowing and concealing its insolvency, issued a policy of insurance for $5,000 on the life of B. K. M. Friend, and that the policy of insurance and the loan constituted one transaction. But the charge is distinctly and emphatically denied in the answer of the association, and also in the
Our conclusion is, that the deed of trust is a valid incumbrance on the whole of the Burlington farm, and that the circuit court erred in holding otherwise. The decree must therefore be reversed, in so far as it is in conflict with this opinion, and in other respects affirmed.
Decree reversed in part and affirmed in part.