Hannah against Swarner, 3 Watts & Serg. 223

The opinion of the Court was delivered by Rogers, J. The testator having directed his land to be sold, it must be considered as money. Equity considers land directed in wills or other instruments to be sold and converted into money as money, and money directed to be employed in the purchase of land as land. So land impressed with the character of money must remain so impressed, until some person elects to take it in its original character as land. 3 Whart. 65; 1 Meriv. 300.

In the case before us, although the wife was not capable of changing the nature of the estate, because of coverture, and unable, therefore, to contract, there was nothing to prevent her husband, in whom the right of electing undoubtedly is, from electing to take it as land. Oldham v. Hughes, (2 Atk. 452). The

article of agreement of the 5th of October 1818, signed by all the heirs and devisees, among whom are John Hannah and wife, amounts to an election to reconvert the land from money to land. The question as to the effect of the election. On one .side, it is said, that the husband elects for himself, and that he acquires a fee simple in the property; whilst it is contended he elects for his wife, and that she has the fee simple, subject only to his marital rights.

Whether the land is a new acquisition, or whether the wife takes the property ex parte paterna, is immaterial, and we consider the case as a question of intention. It cannot be doubted that the husband, by whose act the money is reconverted into land, may by an express determination on his part, avoid any legal consequences by considering the fund so reconverted as his own property, as for example, by taking a deed or conveyance of the property to himself, or by evincing his intention by some other unequivocal act or declaration.

It is also equally plain, that as the property was derived by and through the wife, the husband may order or permit a conveyance or deed to be made to her, or may assent to her having the property in the same manner, and hold the estate as if devised to her by the testator as land. But suppose the husband elects to take the legacy as land without more 1 In that case, it is argued, that as the husband is entitled to the legacy, which he may recover by suit, or may sell, or otherwise dispose of and reduce into possession by an election simply, the land is his in the same manner as the legacy was his.

And this argument would be incontrovertible, if the husband had an absolute right to the money by virtue of the bequest; but until some act of the husband, the wife still retains an interest in it, and upon the death of the husband it survives to her. Recently a disposition has existed in the courts, and in the legislature, to restrain, as far as may be, the power of the husband over the estate of the wife—to take nothing by implication against her; and when the intention is doubtful, to incline most strongly in favour of her rights.

But how far this disposition would control the case supposed, it is not absolutely necessary now to determine, as the case will be put on the special circumstances and words of the

article itself. As before said, the heirs and devisees of the testator, by an

article of agreement of the 5th of October 1818, agreed to reconvert the money into land. In that agreement, as he had an undoubted right to do, John Hannah, the husband, agrees that it shall be the land of the wife. After reciting the terms of the devise, and describing the real estate, &c., they agree to have it divided among them in the following manner, to wit: “ Valuing the land at $25 per acre. Then each heir and devisee to hold land in proportion to the sum bequeathed them by the testator.

The old plantation, on which the testator resided at the time of his death, to be divided by having a line run through said plantation, up and down the valley, on the north side of the great road, which runs through it; then, on the side next the Raccoon creek, viz: on the south side of the said line, is to be the shares of Elizabeth Smith, Mary White, and Joseph Smith; and on the side next the Tuscarora mountain, viz: the north sidé of said line, is to be the shares of John Smith,’Sarah Hannah, and Jesse Miller.” It must be remarked, that in no part of the will is John Hannah mentioned as either heir or devisee ; his name only occurs as the husband of the daughter and devisee, Sarah.

So that the words “ heir and devisee,” in the article, apply to her and not to him. In the article, where it is said what is to be taken, and who is to take, it is to be the share of Sarah and not of her husband. In the construction of the agreement, therefore, without doing any violence to the language used, we may fairly infer an assent by John Hannah that his wife should be entitled to her legacy in land, which would of course vest a fee simple in her, subject to his right as tenant, by the curtesy.

Under all the circumstances, a Court of Chancery would direct a conveyance to the wife; but equity, and particularly in this state, where we have no Court of Chancery, considers that as done which ought to_ have been done. In determining this cause, we must consider the rights of the parties on the execution of the articles by which the husband elected to take the money as land.

If by this act a fee, as we think, was vested in the wife, the deed by the executors cannot affect it, for her interest in land can only be devested by time, or in the mode prescribed by the Act enabling husband and wife to dispose of her estate. There is nothing in the argument that the defendant is a purchaser for a valuable consideration without notice. He acquired by his purchase at the sheriff’s sale the title of John Hannah only. He was bound to ascertain his interest, as it depended on the will and the subsequent agreement to elect to take the legacy as land. Judgment reyersed, and venire de novo awarded.