I concur with the leading opinion of Mr. Justice Fraser that the judgment of the Circuit Court must be reversed and the complaint dismissed. The will of James Major is the scarlet thread which runs through the case. When the particular deed which is in issue was made and recorded, that from the mother and sons to the daughters, there was attached to the record of it a copy of the will of James Major. The plain inference from that circumstance is that the deed was intended to be made under the authority of that will, and pursuant to its limitations. An expert scrivener would have written in the deed that the warrant and chart for it was a will duly recorded. The inexpert scrivener attached the physical copy of the will to the recorded copy of the deed. The two acts mean the same thing.
Looking, then, to the will, it bequeathed to the daughters an absolute title to one-fifth of the proceeds of sale of the land; and, if the deed had followed the will, it would have done the same thing. There was no apparent reason to depart from the terms of the will, and the circumstances *Page 106 cited is directly against such departure. There is yet another circumstance. The scrivener was a layman, a surveyor of lands, and likely belonged to a well known class of men who think that the only sort of an heir a woman can have is a "bodily heir."
The cross deed he drew the same time, from the mother and daughters to the sons, bears on its face the evidence of the scrivener's inexpert character.
There is yet another circumstance. All the sons and daughters, only one of whom yet survives, acted upon the assumption that the three sons got in fee three-fifths of the lands and the two daughters got in fee two-fifths of the lands. It was left for their descendants to take a different view. All the presumptions of fact are against the daughters' consent to invest their absolute money in a limited title. The sons had no right to do so except by the daughters' consent.
A mistake of the character in question needs not to be proved by direct testimony or by much testimony; it may rest in circumstances, as is the case here; and it may be within a very small compass, as is the case here. If the circumstances carry conviction, that is sufficient; and they do carry conviction in the instant case.
On the issue of conversion, also, we think the judgment below is wrong. The testator ideally converted the land into money, and stamped the money as the absolute coin of his children; the children ideally reconverted the money into land; the character of the money followed it into the land, and impressed the land with an absolute title in the children. The right and title of the children rested in the will, and not in the cross deeds; and the cross deeds were powerless to change the right except upon clear consent of grantors and grantees. It is a familiar principle of equity that, if A buys land with B's money, the land becomes B's. A kindred result follows in the case at bar. The presumption of law is, then, that all the children took a fee in the land, and that *Page 107 will not be overcome except upon clear proof of a different intention on the part of all the children. There is no such proof except the deed, and, as aforementioned, the circumstances of the case are all against that interpretation of the deed.
Looking at the deed alone, it warrants the construction the Circuit Court put upon it, and none other; but, looking at it in the light of its history, the deed will not be followed to its literal and verbal consequences.
MR. JUSTICE HYDRICK dissents.