Hoke, J.,
after stating the facts: From the foregoing statement it appears that the testator devised his home lands to his wife, and after her death to his nephew, Thomas P. Jordan. Under the fourth item of the will it is directed that
after the death of the wife, all the residue of the testator’s estate shall be sold and the proceeds equally divided among the children of S. D. Jordan; that Thomas P. Jordan died before the testator, and after the testator’s death the wife died and no sale of the land has yet taken placethat all of the children of S. D. - Jordan have conveyed their interest in the land of the testator to the defendants, W. B. Duckworth and W. P. Whitmire, except Hannah Patterson, who has died leaving her surviving a husband and six children, four of whom are minors; that the adult children of Hannah Patterson, deceased, have joined in the said conveyance to Duckworth and Whitmire; that all of them, and also the husband of Hannah Patterson, are parties defendant — the infants being duly represented by guardian — and all answer stating that they elect to take the land by way of reconversion.
On these facts the questions presented are:
1. Whether the devise in the second item of the will of Thomas P. Jordan, which lapsed by the death of the devisee before the testator, passed under the residuary clause to the children of S. D. Jordan.
2. In case the lapsed devise does .pass under the residuary clause, have the beneficiaries under said clause the right to hold the same as land, or must it be sold by the plaintiff as administrator and the proceeds distributed as directed by item 4 of the will.
On the first question the court is of opinion that the property, the subject of the lapsed devise, passed tinder the residuary clause of the will and must be disposed of as therein directed. Section 2141 of The Oode provides that the will must speak and take effect as if executed immediately before the testator’s death unless a contrary intention appears by the will. Section 2142 provides that unless a contrary intention appears by the will, such property the subject of a lapsed devise, shall be included in the residuary clause (if any) contained in the will. There is nothing in this will
wbicb shows or tends to show an intent contrary to this statute; and in the absence of any such intent in the. will the provisions of the statute must prevail. The case, on this point, is controlled by the decision in
Saunders v. Saunders,
108 N. C., 327. There is nothing in
Hinton v. Jones,
133 N. C., 399, which conflicts with the position here declared. The opinion in
Hinton v. Jones,
expressly recognizes the operative effect of the sections of The Code cited, where the same apply, and rests the decision on the ground that a contrary intention appeared in the will.
On the second question: Under item 4 of the will there was for certain purposes an equitable conversion of the property. In Bispham’s Principles of Equity, Chapter 5, section 307, the author defines this to be “A change of property from real into personal and from personal into real, not actually talcing place, but presumed to exist only by construction or intendment of equity.” And, quoting a decision of Sir Thomas Jewell, M. R., to this effect, the author continues: “By this and other similar declarations the “judges do not mean to assert a solemn piece of legal juggling without any foundation of common sense, but simply to lay down the practical doctrine that for certain purposes of devolution and transfer, and in order that the rights of parties may be enforced and preserved, it is sometimes necessary to regard property as subject to the rules applicable to it in its changed form, and not in its original state, although the change may not have actually taken place.” The doctrine has been applied in several decisions in this State and very generally in other jurisdictions.
Brothers v. Cartwright,
55 N. C., 113;
Benbow v. Moore,
114 N. C., 263;
Ford v. Ford,
70 Wis., 19; s. c. 5 Am. St. Rep., 117, and note at 147;
Bank v. Rice,
143 Cal., 265; Pomeroy Eq., sec. 1175, 1176. And it is equally well established that before any actual change in the property has taken place, there may be a reconversion, which
occurs, says Mr. Bispham, where the direction, to convert is countermanded by the parties entitled to the property.
This reconversion can be effected where all the parties, beneficially interested in the property, by some explicit and binding action direct that no actual conversion shall take place, and elect to take the property in its original form. Pom. Eq., supra; Bispham, sec. 322,
et seq; Craig v. Leslie,
3 Wheat., 562;
Ford v. Ford, supra,
note. There can be no doubt that if a sale is to be had under the provisions of the will, the plaintiff is entitled to execute the power of sale. Code, sec. 1493; Laws 1889, Ch. 461;
Saunders v. Saunders, supra.
But if the election has been properly made, then the power of sale under the will is extinguished, and the beneficiaries and their grantees are entitled to hold the property as it is, and without the expense or disadvantage of a sale.
In -devises of the kind we are now considering, where land is directed to be sold and the proceeds divided, in order to a valid election all the interests must concur and all must be bound. If the beneficiaries are all
sui juris,
such election can be made by deed in which all join, or by answer expressly stating that the parties desire to hold the land as it is, or this may be done partly by deed and partly by answer (and there are other methods), but all must concur by some action that will bind them.
In case some of the beneficiaries are infants, an election cannot be made either by or for them, except by sanction and order of the court after due inquiry. The four infant children of Hannah Patterson, who are made parties defendant, have made no deed, and it would not bind them if they had. Nor can they elect by answer, simply, even though duly represented by guardian. To bind them, an inquiry would have to be made in the cause, and an order signed by the court only when such inquiry disclosed that it would be for the benefit of the infants that a reconversion should be had. This might be done, if it were necessary, in the present case,
and the matter so determined, but in the view taken by the court this is not necessary here, for the reason that all the interest in the property, which would have gone by the will to Hannah Patterson, is now vested in her husband who is a party defendant of record and has filed an answer, stating expressly that he desires and elects to hold his interest by way of reconversion. As heretofore stated, at the time a sale was directed by the will to be made, there was an equitable conversion of the property, and for the purposes of devolution and transfer this land was considered as money. The share of Hannah Patterson would go to her as personalty, and she having died without action concerning it, such interest devolved on her husband. Under our statute he has the right to administer on his wife’s estate and is made her sole distributee, and in the absence of any suggestion.
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Hoke, J.,
after stating the facts: From the foregoing statement it appears that the testator devised his home lands to his wife, and after her death to his nephew, Thomas P. Jordan. Under the fourth item of the will it is directed that
after the death of the wife, all the residue of the testator’s estate shall be sold and the proceeds equally divided among the children of S. D. Jordan; that Thomas P. Jordan died before the testator, and after the testator’s death the wife died and no sale of the land has yet taken placethat all of the children of S. D. - Jordan have conveyed their interest in the land of the testator to the defendants, W. B. Duckworth and W. P. Whitmire, except Hannah Patterson, who has died leaving her surviving a husband and six children, four of whom are minors; that the adult children of Hannah Patterson, deceased, have joined in the said conveyance to Duckworth and Whitmire; that all of them, and also the husband of Hannah Patterson, are parties defendant — the infants being duly represented by guardian — and all answer stating that they elect to take the land by way of reconversion.
On these facts the questions presented are:
1. Whether the devise in the second item of the will of Thomas P. Jordan, which lapsed by the death of the devisee before the testator, passed under the residuary clause to the children of S. D. Jordan.
2. In case the lapsed devise does .pass under the residuary clause, have the beneficiaries under said clause the right to hold the same as land, or must it be sold by the plaintiff as administrator and the proceeds distributed as directed by item 4 of the will.
On the first question the court is of opinion that the property, the subject of the lapsed devise, passed tinder the residuary clause of the will and must be disposed of as therein directed. Section 2141 of The Oode provides that the will must speak and take effect as if executed immediately before the testator’s death unless a contrary intention appears by the will. Section 2142 provides that unless a contrary intention appears by the will, such property the subject of a lapsed devise, shall be included in the residuary clause (if any) contained in the will. There is nothing in this will
wbicb shows or tends to show an intent contrary to this statute; and in the absence of any such intent in the. will the provisions of the statute must prevail. The case, on this point, is controlled by the decision in
Saunders v. Saunders,
108 N. C., 327. There is nothing in
Hinton v. Jones,
133 N. C., 399, which conflicts with the position here declared. The opinion in
Hinton v. Jones,
expressly recognizes the operative effect of the sections of The Code cited, where the same apply, and rests the decision on the ground that a contrary intention appeared in the will.
On the second question: Under item 4 of the will there was for certain purposes an equitable conversion of the property. In Bispham’s Principles of Equity, Chapter 5, section 307, the author defines this to be “A change of property from real into personal and from personal into real, not actually talcing place, but presumed to exist only by construction or intendment of equity.” And, quoting a decision of Sir Thomas Jewell, M. R., to this effect, the author continues: “By this and other similar declarations the “judges do not mean to assert a solemn piece of legal juggling without any foundation of common sense, but simply to lay down the practical doctrine that for certain purposes of devolution and transfer, and in order that the rights of parties may be enforced and preserved, it is sometimes necessary to regard property as subject to the rules applicable to it in its changed form, and not in its original state, although the change may not have actually taken place.” The doctrine has been applied in several decisions in this State and very generally in other jurisdictions.
Brothers v. Cartwright,
55 N. C., 113;
Benbow v. Moore,
114 N. C., 263;
Ford v. Ford,
70 Wis., 19; s. c. 5 Am. St. Rep., 117, and note at 147;
Bank v. Rice,
143 Cal., 265; Pomeroy Eq., sec. 1175, 1176. And it is equally well established that before any actual change in the property has taken place, there may be a reconversion, which
occurs, says Mr. Bispham, where the direction, to convert is countermanded by the parties entitled to the property.
This reconversion can be effected where all the parties, beneficially interested in the property, by some explicit and binding action direct that no actual conversion shall take place, and elect to take the property in its original form. Pom. Eq., supra; Bispham, sec. 322,
et seq; Craig v. Leslie,
3 Wheat., 562;
Ford v. Ford, supra,
note. There can be no doubt that if a sale is to be had under the provisions of the will, the plaintiff is entitled to execute the power of sale. Code, sec. 1493; Laws 1889, Ch. 461;
Saunders v. Saunders, supra.
But if the election has been properly made, then the power of sale under the will is extinguished, and the beneficiaries and their grantees are entitled to hold the property as it is, and without the expense or disadvantage of a sale.
In -devises of the kind we are now considering, where land is directed to be sold and the proceeds divided, in order to a valid election all the interests must concur and all must be bound. If the beneficiaries are all
sui juris,
such election can be made by deed in which all join, or by answer expressly stating that the parties desire to hold the land as it is, or this may be done partly by deed and partly by answer (and there are other methods), but all must concur by some action that will bind them.
In case some of the beneficiaries are infants, an election cannot be made either by or for them, except by sanction and order of the court after due inquiry. The four infant children of Hannah Patterson, who are made parties defendant, have made no deed, and it would not bind them if they had. Nor can they elect by answer, simply, even though duly represented by guardian. To bind them, an inquiry would have to be made in the cause, and an order signed by the court only when such inquiry disclosed that it would be for the benefit of the infants that a reconversion should be had. This might be done, if it were necessary, in the present case,
and the matter so determined, but in the view taken by the court this is not necessary here, for the reason that all the interest in the property, which would have gone by the will to Hannah Patterson, is now vested in her husband who is a party defendant of record and has filed an answer, stating expressly that he desires and elects to hold his interest by way of reconversion. As heretofore stated, at the time a sale was directed by the will to be made, there was an equitable conversion of the property, and for the purposes of devolution and transfer this land was considered as money. The share of Hannah Patterson would go to her as personalty, and she having died without action concerning it, such interest devolved on her husband. Under our statute he has the right to administer on his wife’s estate and is made her sole distributee, and in the absence of any suggestion. or claim of indebtedness, the husband has the sole beneficial interest in the property, so far as his wife’s share is concerned; and while the land on its reconversion goes to him as it was under the will so as to be bound perhaps by intervening liens, in another sense he takes the property by reason- of his election as a new acquisition. Being the sole beneficial owner of his wife’s share, he alone is required to make the election as to that share, and when made, and all concur, on reconversion he is the owner of that interest in the land in his own right.
As the case goes back for further orders we deem it proper to say that if there is any suggestion of debts against the wife’s estate, it may be well to direct that the husband qualify as her administrator, as he has the right to do under the statute. So that the creditors, if there be such, may have some one whom they can hold responsible for their claims, to the extent of the wife’s interest. The principles here stated will be found approved and sustained by authority.
Proctor v. Ferebee,
36 N. C., 143;
Benbow v. Moore, supra; Ford v. Ford, supra; Craig v. Leslie, supra; Finley v. Bent
95 N. Y., 364;
Hannah v. Lawrence,
3 W. & S., 223; s. c.
38 Am. Dec., 755, and note;
Burr v. Sim,
1 Whart., 252; 1 White
&
T. Leading C. Eq., part 2, p. 1170. And on questions of similar import see
Conigland v. Smith,
79 N. C., 303 ;
Davis v. Railroad,
136 N. C., 115.
This being true, the defendants in their answer have presented a case of reconversion by election, valid and binding on all the parties having a beneficial interest in the property, and by which the power of sale under the will is extinguished.
The adult children of S. D. Jordan have conveyed their shares to the defendants, Duckworth and Whitmire, and the husband of Hannah Patterson, who alone represents that share, has in his answer signified his desire that a reconversion be had.
It will be noted that we speak here throughout of a sale under and by virtue of the will, and on the idea that there are no debts outsanding against the estate of the testator re-
,
quiring a sale of the realty. If the plaintiffs establish debts and their right to sell the land to pay the same by order of the court, such power might arise to them under the statute providing for the sale of realty to pay debts, but this question is not presented-in the appeal.
It is the opinion of the court that the land, the subject of this controversy, is included in the residuary clause; that the answer, if established, presents a case of reconversion which extinguishes the power of sale under the will, and gives the defendants the right to hold the land
in specie
unless the same be required to- pay the debts of the testator.
Judgment reversed.