Appeal
from superior court, Guilford county; H. G. Connor, Judge.
Special
proceeding by W. J. Benbow and Lydia Benbow, his wife
against Mary A. Moore and others, for the assignment of dower
in certain land to said Mary A. Moore, and for partition.
From a judgment for plaintiffs on a case agreed, defendants
appeal. Affirmed.
The
following are the statements of the case agreed: "(1)
That John Cunningham, of Davidson county, Tennessee, died in
October, 1860, leaving a last will and testament, probated in
the proper court of said state, of which the following is a
copy: 'Out of my moneys on hand or due me at the time of
my death, it is my wish that my debts be paid. It is my wish
and will that my aunt, Letsey Coots, with whom I live, shall
have the use of my two negro men, Randal and Tom, and any
stock on the place belonging to me that she may need to
cultivate the place for her support, as long as she may live.
It is my wish that one thousand dollars be loaned out by my
executor for the use and benefit of my afflicted niece, Miss
Roberts, of North Carolina, the interest--one hundred
dollars-- to be paid her guardian yearly for her support as
long as she lives. It is my wish and will that my negroes be
allowed to choose their master or masters (Tom and Randal, at
the death of my aunt, or before, if she does not choose to
keep them), and that the person so selected by them shall pay
to my estate a moderate price, to be fixed upon each by three
disinterested neighbors; mothers of children under eight
years of age to choose for such children, so as they may be
kept together. It is my wish and will that my land (about one
hundred and fifty acres) on which I live, including all
reversionary interest, shall be sold to John Overton, at a
price reasonable and fair, to be agreed upon by any three
persons who may be acceptable to him and my executor, he
paying the price fixed in one and two years. It is my wish
and will that my executor pay over to my only living brother
James C. Cunningham, of North Carolina, four thousand dollars
out of the first moneys coming into his hands from
collections, sale of negroes and stocks, after setting aside
one thousand dollars for the use of my niece before
mentioned. And, lastly, it is my wish and will that all of
the balance of the proceeds of the sale of my lands, negroes
etc., be equally divided, after the death of my Aunt Letsey
between all my nephews and nieces then living, except the
niece to whom I have given the use of $1,000, should she be
then alive.' (2) That Letsey Coots died in the year 1863.
(3) That, on the death of John Cunningham, Letsey Coots,
legatee and devisee for life, filed a bill in equity, seeking
to set aside the disposition of the property in the will, she
claiming that he had no right to dispose of the property; and
on this bill it was finally adjudged that the will was
operative and disposed of the property, and thereupon John
Overton took the land, as provided in the will, in May, 1868,
giving his notes in equal installments, due in one and two
years, to the administrator with will annexed, for the
aggregate sum of $13,000, or thereabouts; and the deed from
the administrator to said Overton bears date May 18, 1869.
That defendant Mary A. Moore, the wife of H. C. Moore, was
one of the nieces of John Cunningham, and as such is a
legatee or devisee under the will, and her share in the
proceeds of the land was $1,957.22, which was sent to this
state in checks payable to her and her husband upon the
following dates and amounts, to wit: September 16, 1870,
$933.57; May 17, 1873, $125; July 8, 1873, $125; January 28,
1874, $285.71; June 6, 1874, $450; September 2, 1875, $38.
That of the money received, as above, H. C. Moore, the
husband of Mary A. Moore, paid $1,400 for the mill tract in
controversy on the 2d of November, 1870, and that the deed
therefor was executed to him in his own name, and he died in
1877. That H. C. Moore died in possession of this and his
other lands, and at his death his wife, Mary A. Moore,
continued to reside on the lands, and has so resided ever
since, receiving and using the entire rents and profits for
herself and family. That H. C. Moore and Mary A. Moore were
married in 1860, and before the death of John Cunningham, of
Tennessee."
SHEPHERD
C.J.
The
defendant Mary A. Moore alleges that the mill tract mentioned
in the pleadings was purchased by
her husband, H. C. Moore, with money belonging to her
separate estate, and she prays the court to declare a trust
in her favor against the heirs at law of the said H. C.
Moore, to whom the legal title descended. The money used in
the purchase of the land was the share to which the said Mary
was entitled in the proceeds of certain lands in Tennessee
which were sold under the provisions of the will of her
uncle, John Cunningham, and was received by her husband
subsequently to the adoption of the present constitution.
[1]
The question presented is whether this money was the property
of the husband jure mariti; and as the marriage was
contracted in 1860, and before the death of the testator in
the same year, it is necessary to determine whether, under
the will, there was an equitable conversion of the said lands
into personalty. It is a familiar maxim in equity "that
things shall be considered as actually done which ought to
have been done;" and it is with reference to this
principle that land is, under some circumstances, regarded as
money, and money as land. It was, at an early period, laid
down by Sir Thomas Sewell, M. R., in the leading case of
Fletcher v. Ashburner, 1 Brown, Ch. 497, "that
money directed to be employed in the purchase of land, and
land directed to be sold and turned into money, are to be
considered as that species of property into which they are
directed to be converted; and this, in whatever manner the
direction is given, whether by will, by way of contract,
marriage articles, settlement, or otherwise; and whether the
money is actually deposited, or only covenanted to be paid;
whether the land is actually conveyed or only agreed to be
conveyed. The owner of the fund or the contracting parties
may make land money, or money land." This principle is
so universally accepted that it is needless to cite
additional authority in its support; and it is equally well
settled "that every person claiming property under an
instrument directing its conversion must take it in the
character which that instrument has impressed upon it; and
its subsequent devolution and disposition will be governed by
the rules applicable to that species of property." 1
Williams, Ex'rs, 551; Smith v. McCrary, 3 Ired.
Eq. 204; Brothers v. Cartwright, 2 Jones, Eq.
113; Conly v. Kincaid, 1 Winst. Eq. 44; Proctor
v. Ferebee, 1 Ired. Eq. 143; Adams, Eq. 136. It is
undoubtedly true, as contended by counsel, that this
constructive conversion...
