Marcy v. Graham

• Decision Date: 11 June 1925
• Citation: 142 Va. 285
• Court: Virginia Supreme Court
• Parties: OCTAVIA GRAHAM MARCY v. HENRY SYLVESTER GRAHAM, ET ALS.

Page 285

142 Va. 285

OCTAVIA GRAHAM MARCY v. HENRY SYLVESTER GRAHAM, ET ALS.

Supreme Court of Virginia, Wytheville.

June 11, 1925.

Argued before Judge Chichester took his seat.

1. EQUITY — Conversion and Reconversion — Statement of Doctrine. — The doctrine of equitable conversion is a pure creature of equity, unknown to the law, and is a mere incident or application of the maxim that equity treats that as done which ought to be done. Under it land which is directed to be converted into money is treated as money, and money which is directed to be invested in land is treated as land.

2. EQUITY — Conversion and Reconversion — Doctrine as Applied to Wills. — As applied to wills, the object is to ascertain the intention of the testator, and whether that intention was a conversion out and out for all purposes, or merely for a particular purpose, is to be gathered from a consideration of the will as a whole. This a direction to convert will be treated as a conversion is a well-recognized rule of equity jurisprudence.

3. EQUITY — Conversion and Reconversion — Inequitable Results — Wills — Intention of Testator. — Because conversion is an equitable doctrine (though its application and its limitations are quite well defined, and do not depend upon the length of the chancellor's foot), it should never be applied to defeat the purpose of a testator or to produce inequitable results.

4. CONVERSION AND RECONVERSION — Wills — Case at Bar. — Direction by a testator in his will to dispose of his real estate and to divide the proceeds arising thereform equally among his children operated to convert that property from realty to personalty.

5. EQUITY — Conversion and Reconversion — Reconversion — Partition in Kind — Case at Bar. — Where a testator directed that his real property should be disposed of and the proceeds divided equally among his children, a deed of partition under which the beneficiaries took certain parcels of the land in severalty operated to reconvert the land so taken from personalty to realty.

6. EQUITY — Conversion and Reconversion — Election to Reconvert. — An election to reconvert property by the parties interested must be the unequivocal act of all of them.

7. EQUITY — Conversion and Reconversion — Reconversion — Holding for Sale — Presumption that Status is Unchanged. — Devisees of a tract of land, converted by their father's will into personalty, reconverted a portion of the land by a partition in kind, but took no action with reference to an undivided residuum of the tract which could with certainty be construed as an unequivocal determination of all of them to reconvert the personalty into realty. A fair construction of their joint actions was that they were holding it for purposes of sale, and so holding it in accordance with the will of their father; this because such a status, being once established, is presumed to continue until changed by the parties.

Held: That the residuum of the tract was not reconverted.

8. EQUITY — Conversion and Reconversion — Statement of the Doctrine of Reconversion. — The party entitled to the beneficial interest may elect to prevent the actual conversion, and to hold it in the form in which he found it; and this election he may make by application to the court of equity, or by unequivocal acts or declarations plainly manifesting his determination.

9. EQUITY — Conversion and Reconversion — Election to Reconvert. — The acts and declarations which are construed to constitute an election to reconvert converted property must clearly manifest the determination to make such an election.

10. EQUITY — Conversion and Reconversion — Election to Reconvert — Case at Bar. — In the instant case no act of the beneficiaries indicating an intent to reconvert real estate, converted into personalty by their father's will, appeared other than their bare failure to dispose of the property as directed by the will. It would have been difficult and expensive to divide the property in kind, and the fact that they allotted part of the property and failed to allot the rest meant that they did not intend to change any of their legal rights with reference to that portion of the property which they left undivided.

Held: That there had been no reconversion.

11. EQUITY — Conversion and Reconversion — Election to Reconvert — Holding Property and Collecting Rents. — The mere holding of proprty directed to be converted into personalty and the collection of rents and profits therefrom does not constitute an election to reconvert.

12. WILLS — Legacies and Devises — Personalty Primary Fund for Payment of Legacies — Liability of Realty. — Real estate is not chargeable with the payment of legacies even where the personal estate proves insufficient unless the testator has charged the land with their payment and the intention so to charge must be clear.

13. WILLS — Legacies and Devises — When Legacies Charged on Land. — Where the language of a will combines real and personal estate in a residuary clause, a charge upon the real estate which is included in such residuum arises by implication for the satisfaction of the legacies previously given in the will, if such implication is not inconsistent with admissible extraneous circumstances or other provisions of the will itself.

14. WILLS — Legacies and Devises — When Legacies Charged on Real Estate. — A charge of legacies on the realty will be implied if the language of the will indicates that the testator intended the legacies to be paid, knowing that his personal estate would be insufficient for the purpose, or if it appear that in giving the legacies he had the real estate in mind.

15. WILLS — Construction — Intention of Testator. — In the construction of wills the intention of the testator, if it can be determined, is controlling, and all refinements of the law as to the abatement or ademption of legacies for the exoneration of realty specifically devised must yield to the power of the testator to dispose of his property as he desires. This intention, as has been so often said, is the guiding star, and when this is ascertained, and can be made effective, the quest is ended, and all other rules become immaterial.

16. WILLS — Legacies and Devises — Legacies a Charge on the Land — Case at Bar. — In the instant case testatrix's personal property was wholly insufficient to satisfy her pecuniary legacies to her nearest relatives. In framing the residuary clause to her will be testatrix intended to combine all of her personal property which had not been theretofore disposed of with all of her real estate which had not been otherwise devised. She then had in mind the unallotted and unsold residue of the real estate, which her father had directed to be sold and the proceeds divided. And when she specifically referred to property which would "come to her," she referred to and included her interest in these specific assets of her estate, the undivided land of her father's estate.

Held: That testatrix intended this realty to be chargeable with the pecuniary legacies.

Appeal from a decree of the Circuit Court of Arlington county. Decree for complainants. Defendant appeals.

The opinion states the case.

Christopher B. Garnett and John S. Barbour, for the appellant.

Basil D. Boteler and Mackall & Mackall, for the appellees.

PRENTIS, P., delivered the opinion of the court.

This is a controversy between the legatees under the will of Eleanor Euphemia Graham, to whom she bequeathed specific pecuniary legacies, and Octavia Graham Marcy, who is one of three joint legatees and devisees under her will. The questions discussed require the construction of the wills of Eleanor Euphemia Graham and of her father, Curtis B. Graham, Sr., who died in 1890. His will, after making provision for the use of his home by his wife, directs:

"Such part or parts of my estate as may be to the best interest of the same to be disposed of to liquidate any indebtedness against same. The residue to remain intact so long as my wife may live.

"Any surplus arising from rents, and not otherwise provided for, after paying all taxes, insurance and necessary repairs shall be divided equally, share and share alike, to my children hereinafter named. At the death of my wife, my estate to be disposed of as my executors, hereinafter named, may deem to the best interest of the same and the proceeds therefrom divided equally, share and share alike, to my eight children, namely: Cecilia, Euphemia, Curtis, Henry, Andrew, Sadie, Ottie and Frederick, or their heirs.

"And I do name my two sons, Andrew and Frederick, as my executors to carry out the provisions of this my last will and testament, and I further request that they be not required to give bond."

The questions raised under this provision are whether or not, at the death of the wife of Curtis B. Graham, Sr., and because of the direction to dispose of his real estate and divide the proceeds thereof between his eight children, there was an equitable conversion of the land into personalty, and also whether or not, conceding this to be true, the property was thereafter by the action of the beneficiaries reconverted into realty.

The land consisted of about thirty-nine acres in Arlington county and five lots in the city of Washington, D.C. After the death of the wife of Curtis B. Graham, Sr., the land in Arlington county was subdivided into nine parcels and each of his eight children, by deed of partition, took one lot, which left another designated as No. 9, containing 22.837 acres, which was neither partitioned nor disposed of, and this parcel is the subject matter of this suit. In 1918 one of the lots in the city of Washington was sold and conveyed by the joint deed of these beneficiaries under the will of Curtis B. Graham, Sr., and the proceeds distributed. Another of these lots in Washington has been sold since the death of his daughter, Eleanor Euphemia Graham. Her share of the proceeds thereof is held by her executor and has...