delivered the opinion of the court.
There can be no doubt, both upon principle and authority, that the execution by Mrs. Minor, in conjunction with her husband, either as principal or surety, of the bond for two thousand dollars, the payment of which with the interest thereon, the appellant is seeking to enforce, operates a general charge upon her separate estate, and that the several deeds of trust on the “Greenway” farm, to the extent of her interest therein, which is the principal portion of said estate, are specific liens on said interest, unless her power to alien or encumber her separate estate was restrained or denied by the instruments creating it. McChesney & als. v. Brown’s heirs, 25 Gratt. 393; Burnett & wife v. Hawpe’s ex’or, Id. 481; Darnall & wife v. Smith’s adm’r & als., 26 Gratt. 878; Bank of Greensboro’ v. Chambers & als., 30 Gratt. 202; Justis v. English & als., Id. 565, and cases there cited. See also Garland v. Pamplin & als., 32 Gratt. 305.
She derived her interest in one-third part of the farm under the will of her father, Charles J. Catlett, who died in 1845, and in two-thirds under the deed of her husband, executed June 12, 1865. The conveyance by this deed is to T. Parkin. Scott, in trust, as declared, “for the sole and separate use, benefit and behoof of the said Louisa Fairfax Minor, wife of the said John West Minor, during her natural life, and for the use of the heirs of the said Louisa Fairfax Minor after her death, in the manner and form as set forth and provided in the will of the said Charles J. Catlett as aforesaid.”
We are thus referred by the deed to the will, and the extent of the wife’s power over the estate created
By his will, the testator, after giving to his wife an annuity of one thousand dollars during her life and charging his whole estate with its payment, gives to his son Ersldne Catlett and to his daughter-in-law Esther Ann Catlett and to their heirs respectively, each one-third part of his whole estate subject to the annuity bequeathed to his wife. The remaining third part he gives to his daughter Mrs. Minor by the following clause: “I give and devise one other third part or portion of my whole estate, real, personal or mixed of every kind and description whatever which I may die possessed of or owning, to my daughter-in-law, Esther Ann Catlett, and her heirs, in trust for the use, benefit and behoof of my daughter Louisa Eairfax Minor, wife of John West Minor, during her natural life, and for the use of the heirs of my said daughter after the death of my said daughter, subject to the annuity aforesaid; and my will is and I liereby empower and require.the said Esther Ann Catlett, trustee as aforesaid, as soon as convenient and practicable after having received the said legacy, or proceeds of said devise, to loan out the same at interest on good and sufficient security by bond and mortgage on unincumbered real estate and to apply the interest or income which shall or may arise, accrue or be derived therefrom to the payment and discharge of all the expenses and charges necessary and required for the proper maintenance, support and comfort of my said daughter Louisa, or the said trustee may, if she shall in her discretion deem it proper, pay over the interest or income aforesaid to my said daughter, Louisa, semi-annually in money on her sole and separate receipt independent of any interference, hindrance or control of her husband or by him; and the said interest or income shall not be
By a subsequent clause, the executors are empowered and directed to sell his property, and from the proceeds of sale, first pay his debts and funeral charges; next, set apart a sum, the annual interest or income from which will be sufficient to pay the annuity to his wife, and then, in the language of the will, “pay the three other legatees named in this my last will and testament as hereinbefore mentioned and directed. He further directs, that the principal sum set apart to provide the annuity to his wife, shall, on her demise, be equally divided among _ the legatees aforesaid. By a codicil, he gives all his personal property to his son Erskine, and declares it to be his will and desire that the sale of his real estate shall not take place until after the death of his wife.
We are of opinion, that by the provisions of this will, the' whole estate of the testator was equitably converted into money.
It is well settled, that land directed or agreed to be sold and turned into money (upon the principle that what is agreed or ought to be done is considered as done) shall be treated as assuming the quality of personalty, and as continuing impressed with that character, until some person entitled to the proceeds shall elect to take the subject in its original character of land. Per Baldwin, J. in Siter Price & Co. v. McClanichan and others, 2 Gratt. 280, 294. See also Fletcher v. Ashburner, and notes, English and American, 1 Lead. Cas. Eq. Part 2, (4th Ed.), 1118 et seq; Craig v. Leslie, 3 Wheaton R. 563; Harcumis adm'r v. Hudnall, 14 Gratt. 869 and cases there cited.
In the last named case, it is said, (p. 3*7*7), that no discrimination appears to be made in this doctrine of
To have the effect in equity of a conversion, the direction to sell must not be merely optional. It must be imperative. Tazewell and others v. Smith’s adm’r, 1 Rand. 313, 320. The intention, however, to convert may be implied without express words directing a sale. It is sufficient if such intention be clear. 1 Lead. Cas. Eq. (4th Ed.), 1138.
Looking to the clause which authorizes the sale, the language in the first part is mandatory. * * * “I do hereby authorize, empower, and direct my executors * * * to sell and dispose of,” &c. In Green v. Johnson, 4 Bush (K'y) R. 164, the language of the will was, “I authorize and request my executors * * * to sell and convey all my lands, except,” &c. The word “ request” was considered as synonymous with “require—direct—order,” the latter words being regarded as mandatory.
By the will of Charles J. Catlett, the only discretion given to the executors is as to the time or times and manner of sale of the different portions of the property. In a case in New York, where a like discretion was given, the direction to sell was nevertheless considered imperative. Stagg v. Jackson, 1 Comstock R. 206.
If the clause directing the sale be read, as it should be, in connection with the other parts of the will, and
In Phelps’ ex’or v. Pond, 23 New York R. 69, where a testator authorized his executors to sell real estate, and it was apparent from the general provisions of the will, that he intended such estate to be sold, the doctrine of equitable conversion was applied, although the power of sale was not in terms imperative. See also Power v. Cassidy, 9 Reporter 351; Burr v. Sims & als., 1 Wharton (Penn.) R. 252, 262.
The entire real estate of the testator being equitably converted into money, the important inquiry is, what limitation or restraint, if any, was placed upon the power of Mrs. Minor to alien or encumber the portion given in trust for her? And here it may be remarked that the same rule applies, which has been already adverted to as applicable in determining the question of equitable conversion. The restriction need not be expressed in negative words. Ho particular phraseology is required, but the intention must be clear. It is sufficient if the intention can be gathered from the whole instrument. 2 Perry on Trusts, § 670 and cases cited; Freeman, adm’r v. Flood, 16 Ga. 528.
In Bank of Greensboro’ v. Chambers & als., 30 Gratt. 202, restraint upon alienation was deduced by construction from the instrument as a whole. In the opinion in that case, it was said, “We do not find in the deed of settlement in this case any express interdiction or limitation of the jus disponendi and of the incidental power to encumber and charge the separate estate to an extent involving alienation, but, if by a fair construction of the instrument, the exercise of
The will, which fixes the limitation, if any there be,, to the wife’s power over her separate estate in the present ease, does not in terms forbid her to alien,, charge or encumber the estate, nor does it contain any formal clause against anticipation, such as is sometimes, found in settlements, especially in England, but the intention to restrain seems to be plainly implied. The main object of the testator in"the provision made for his daughter manifestly was to secure to her a comfortable support and maintenance as long as she lived. To accomplish this object, two things at least' were necessary to be done—to exclude the rights of the husband and limit the powers of the wife. The first was effected by giving to the wife a separate use and the second by creating a permanent fund to be under the exclusive control and management of a trustee,, who was not only empowered but required to “ apply ” the interest or income “arising from the fond to the payment and discharge of all the expenses and charges necessary and required for the proper maintenance, support and comfort ” of the wife. Unlimited power in the wife to dispose of the fund or to anticipate the income would be a power to frustrate the main design of the testator in creating the trust, namely, the providing and securing to his daughter with reasonable certainty support and maintenance during her life, and it must therefore be taken that he intended to deny to her any such power.
The alternative provision, which authorizes the trustee, instead of pei’sonally applying the interest or income to her support, to pay it over to her “ semiannually in money on her sole and separate receipt, is
There are adjudged cases in the English chancery to the effect, that to direct the “profits to he paid .from time to time into the proper hands of the wife;” or that the “ profits shall be paid to such persons and in such manner as the wife shall from time to time, during her life, notwithstanding her coverture, by any note or writing appoint, and in default of appointment, into her proper hands for her separate use;” or that the profits shall be paid “ as the same became due and payable, into the hands of the wife, and not otherwise, and that the receipts of the wife alone for what shall he actually paid into her own proper hands should he a sufficient discharge,” does not sufficiently evince an intention to restrain anticipation of income. These cases are referred to in 1 Minor’s Institutes 327 and have been examined. Some of them were cited in argument by the learned counsel for the appellant. Without meaning to question the correctness of the decisions, it is sufficient to say, that the language employed. is not the same as that used in the will which we have to construe in this case. Owing to the diversity in phraseology and attending circumstances, decided cases can seldom have a controlling influence in the construction of instruments. We may however, for illustration, refer to Perkins, &c. v. Hays and others, 3 Gray’s R. 405, which is somewhat analogous to the case in judg
Our conclusion is, that Mrs. Minor had no power to dispose of, or charge, or encumber the corpus of the estate derived by her under the will of her father or acquired by the several deeds set out in the record, except such, if any, as was acquired under the deed of her son Fairfax O. Minor, dated the 11th day of May, 1865. If she took anything under the last named deed, though to her separate use, she was expressly empowered by the deed to dispose of it as if'she were “an unmarried woman.” hfor did she have the power to anticipate the profits, income or interest which might arise or be derived from said estate (except as to the interest, if any, acquired as aforesaid under the deed of her son Fairfax), so far as they might he required
It was earnestly argued by the learned counsel for the appellant, that even if the real estate devised by the will was equitably converted into money (a proposition they do not admit, but which to us seems dear), yet it was reconverted into real estate by the election of the parties, shown by the suit for partition in 1846, the actual division of the land under a decree in that suit, and subsequent acts and conduct of the parties. In the view we take of this ease, it is not at all necessary to decide, whether any valid election was made or not. For if it be conceded, that it was made, and that the Greenway farm is to be treated as land, the concession does not help the appellant. Whether the estate be realty or personalty, it remained the separate estate of Mrs. Minor, and bound by all the fetters put upon it by the will; the portion acquired under the deed of her husband being placed by the deed on the same footing with the portion derived under the will. Election might change the form in which she would take and hold the estate, but it could not enlarge her powers over it. The restraint imposed was a modification of the separate estate, which she could not change or effect by election or otherwise.
The subsequent discoverture of Mrs. Minor cannot per se give any other or greater force and effect to her prior engagements than they had during the coverture. Such engagements did not bind her personally either at law or in equity, so as to warrant a personal judgment or decree against her. They affected her separate estate to the extent and only to the extent of her-then existing powers over it. They had no other operation. Her subsequent discoverture could not, upon any principle known to us, operate by estoppel or otherwise to enlarge the liabilities of that estate imposed by the engagements when entered into.
The only error in the decree appealed from is the dismissal of the appellant’s bill, so far as it seeks tO' subject the income of the estate to the payment of the debts mentioned in the deeds of trust. Such dismissal,, in respect of said income, should have been confined to so much of the bill as seeks to subject the income required for Mrs. Minor’s support and maintenance.
For this error, the decree must be reversed in part,, and the cause remanded for further proceedings.
The decree was as follows:
This day came again the parties by their counsel,, and the court having maturely considered the tran
Decree reversed in part.