The bill further charged that John and Miles left a large personal estate, and the complainant, William Heckstall, as their administrator, claimed the same.
The answer of Powell admitted that as guardian he had received two-thirds of the price of the land; and as to the other property which it was alleged had belonged to his wards, he referred to his accounts as guardian, making them part of his answer, whereby it appeared that the estates of John and Miles were indebted to him.
The answer also stated that John died first, and then Miles, after the defendant had received the purchase money of the land, and that Miles left, at his death, besides Mrs. Heckstall, two other sisters, Nancy and Patsy, on the father's side, who are equally entitled with Mrs. Heckstall, and are not parties to the bill.
The matters of account were referred, in the court below, to the master, and on his report, Daniel J., below, decreed that the complainants should receive of defendant two-thirds of the amount for which the land sold, it being considered by the court as land; and that the defendant should retain the interest made on the money, as profits of the land, in part payment of his claim for advancements made to John and Miles as their guardian, and that each party pay his own costs.
From this decree defendant appealed. According to the directions of the act relative to the sale of lands for the sake of partition, the proceeds of an infant's share shall be so invested, or settled, that the same shall be effectually secured unto the person so entitled, or his or her real representative. 1812, ch. 847.
If John and Miles Powell had died intestate before the sale, Elizabeth, the plaintiff's wife, would have been their heir at law, in exclusion of their paternal half-sisters, conformably to the fourth rule of descent established by the act of 1808. It is equally clear that if either had died under age, after the sale, the money produced by the sale must have been *Page 99 considered as land, and, therefore, the heir at law would have succeeded to it. But it is not so certain that if one or both had arrived at full age, and then died, that his or their share of the money would then have been considered as land, and be descendible accordingly. It is stated in the case that one died after he came of age, but it is stated incidentally in the defendant's answer, and for a purpose altogether unconnected with the principal question.
Now, the decree considers the whole sum as real estate, in (219) which it is erroneous, and must be reversed. The cause must be remanded for further proceedings, and especially for the purpose of ascertaining the ages of John and Miles Powell at the time of their respective deaths.
PER CURIAM. Remanded.