delivered the opinion of the court:
By thе terms of the will none of the devisees took any interest in the real estate of testatrix. The will directed that all of the estate, real and personal, of the testatrix be sold and the proceeds be divided, except $4500 that was to be held in trust for the benefit of appellee. The devises, therefore, must be treated as devises of money and not of land, and in that case the devisees could not sell or convey title to any part of the land nor could the interest of any one of them in the proceeds be sold on execution. In such case the deviseеs may, if they are all of age and under no disability, elect to take the land itself instead of the money, but to accomplish this' the concurrenсe of all the devisees is required. This has been held to be the law from the time of the decision in the case of Baker v. Copenbarger,
Apрellant contends that the re-conversion of the lot in controversy into real estate was for the benefit of all four of the children of testatrix, and that after such re-conversion it became the same as intestate real estate, or as real estate devised equally tо all of the devisees. This position is contrary to the allegations of the bill, which, for the purposes of the decision of this case, must be assumed to be true. It -appears from the bill that the re-conversion of the premises into real estate was agreed to among all the heirs аnd devisees in March, 1903, at which time, by verbal agreement, the lot was accepted by appellee in lieu of the $4500 bequeathed in trust for her by hеr mother’s will. The personal estate of the testatrix inventoried by the administrators amounted to $16,125.57. The bill alleges that the indebtedness amounted only tо the sum of $429.30, and it further appears from the allegations of the bill that, with the exception of a note for $1200, all the personal estate wаs retained by the administrators, and no account had been rendered thereof to the court or to appellee, who is surety on the bоnd of the administrators. At the time of the alleged re-conversion of the premises into real estate, and its acceptance by appellee, no other person or persons than the four children of the testatrix had any interest in the land or the proceeds thereоf. All of them being of age and under no disability, they had the right to re-convert it into real estate instead of selling it and disposing of the proceeds in accordance with the provisions of the will. In our opinion Albert Pasquay did not, upon the re-conversion, become the owner of any interеst in the land. The re-conversion, as alleged in the bill, was not for the benefit of all the heirs but was for the purpose of vesting title in appelleе. It was the agreement that appellee might take it as real estate in lieu of other provisions made for her in the will, and her acceptance of it, that constituted the ■ re-conversion, and this operated to vest in her the equitable title. But if it be conceded, as claimеd by appellant, that by the re-conversion each of the heirs became seized of a one-fourth interest in the premises, the three brоthers conveyed their interests by parol to appellee, and pursuant thereto delivered possession, before appellant instituted the attachment proceeding.
Appellant contends that the parol agreement set up in the bill is within the Statute of Frauds, and therefore invalid. We have above set out the averments of the bill as to the agreement and the consideration therefor. The bill alleges that '“in рursuance thereof the said Ernest Pasquay, Rudolph Pasquay and Albert Pasquay delivered to your complainant the exclusive possession of thе said real estate aboye described, and she entered into possession of the same under and in pursuance of the said agreement and of the conveyances hereinafter mentioned.” Where, pursuant to an oral sale of land, the consideration is fully paid and possession given the purchaser, this is a sufficient performance to take the case out of the Statute of Frauds. (Fitzsimmons v. Allen,
There is still another answer to this contention of appellant. A verbal contract respecting land is not void but is voidable only, at the will of either party to it, and a third person cannot object to the parties themselves being bound by the contract. The Statute оf Frauds is a personal defense, and can only be relied upon by the parties or their privies. (Gary v. Newton,
The fact that some time after the vеrbal agreement by which the appellee claims title Albert Pasquay made a quitclaim deed to Rudolph, and subsequently Rudolph and Ernest quit-claimed to the appellee, is not inconsistent with the allegations of the bill that the appellee claimed title by the verbal agreement. Thе bill alleges that these deeds were made by virtue of said verbal agreement. They did not convey title in the first instance, but were merely evidencе of the title conferred by virtue of the provisions of the parol agreement under which possession was taken. Neither is the allegation of the bill that up to the time of the death of Emilie Pasquay appellee and her brother Albert lived with her mother on said premises, and that after thе death of Emilie Pasquay appellee continued to make said premises her home, inconsistent with the averment that possession was delivered to appellee, in pursuance of said verbal agreement, at the time it was made.
The judgment of the Appellate Court is affirmed.
Judgment affirmed.