Wachovia Bank & Trust Co. v. Allen

60 S.E.2d 117 (1950) 232 N.C. 274

WACHOVIA BANK & TRUST CO.
v.
ALLEN et al.

No. 745.

Supreme Court of North Carolina.

June 9, 1950.

Womble, Carlyle, Martin & Sandridge, Winston-Salem, for plaintiff, appellant.

Ratcliff, Vaughn, Hudson & Ferrell, Winston-Salem, for defendant Sosnik & Sosnik, Inc., appellee.

Charles F. Vance, Jr., Winston-Salem, guardian ad litem, in propria persona.

DENNY, Justice.

The question presented for our determination is simply this: Did the court, under the facts and circumstances disclosed on this record, have the power to authorize the Executor of the last will and testament of Laura L. Allen to execute the proposed lease and to decree that if said lease is still in effect, at the death of Ann Irene Allen, neither the Wachovia Bank & Trust Company, as Executor of Laura L. Allen, nor its successors, if any, shall sell the leased property, but that title thereto shall vest, upon the death of Ann Irene Allen without issue (subject to said lease) in any of the children of Laura L. Allen then living, share and share alike, the issue of any deceased child to take the share of their deceased parent would have taken if such parent had survived the said Ann Irene Allen?

Ann Irene Allen is now more than 63 years of age. She has never married and has no children. And while courts hold to the view that there is possibility of issue as long as there is life, we know such view, when applied to elderly women, is contrary to human experience. Cole v. Cole, 229 N.C. 757, 51 S.E.2d 491, 6 A.L.R. 2d 1335. Therefore, we may assume that for all practical purposes Ann Irene Allen holds only a life estate in the premises involved herein. At the present time there are four persons who will take under the terms of the will of Laura L. Allen, if they survive the life tenant, to-wit, Laura Loline Allen Saunders, a sister, who is 76 years of age and has no children, Ada Husk Allen, a sister, who is 66 years of age and has no children, Nettie Allen Thomas Voges, a niece, who is 47 years of age, married but has no children, and Laura Thomas Hall, a niece, who is 44 years of age, divorced and has no children.

Ordinarily, persons claiming property under a will must take it in the character which the instrument has impressed upon it. Seagle v. Harris, 214 N.C. 339, 199 S.E. 271. But the doctrine of reconversion is recognized in this jurisdiction. Proctor v. Ferebee, 36 N.C. 143, 36 Am. Dec. 34; Duckworth v. Jordan, 138 N.C. 520, 51 S.E. 109; Seagle v. Harris, supra.

"Where land is directed to be converted into money * * * all the parties entitled beneficially thereto have the right to take the property in its unconverted form, and thus prevent the actual conversion thereof, and this right to take the realty instead of the proceeds is not limited to beneficiaries who also hold the legal title.

In the case of land, the election of one of the beneficiaries alone will not change the character of the estate; all the persons so beneficially interested must join, and all must be bound, * * *. Remaindermen and other holders of future interests cannot elect so as to affect the interests of owners of prior estates; but they may make an election binding on themselves and their own real and personal representatives." 18 C.J.S., Conversion § 55, page 83, citing Anderson v. Wise, 144 Kan. 612, 62 P.2d 805; Harper v. Chatham Nat. Bank, 17 Misc. 221, 40 N.Y.S. 1084; Seagle v. Harris, supra; Clifton v. Owens, 170 N.C. 607, 87 S.E. 502; Bonded Building and Loan Association v. Konner, 118 N.J.Eq. 546, 180 A. 570; In re Hennessy's Estate, 155 Misc. 53, 278 N.Y.S. 700; 13 C.J. page 889; 18 C.J.S., Conversion, § 55.

In the instant case, every person who has any interest in the land involved, vested or contingent, or who would have any interest in the property under the statute of descent if Laura L. Allen had died intestate, has joined in the execution of the proposed lease. Not only have all the beneficial owners expressed a desire to have the court approve the lease, but the Executor of the last will and testament of Laura L. Allen and the guardian ad litem have informed the court that, in their opinion, it is for the best interest of all interested parties for the lease to be approved and executed by the Executor on behalf of the estate of Laura L. Allen.

We hold that the execution of the proposed lease by the life tenant and all the remaindermen is tantamount to an election by the remaindermen to take the property in its unconverted form, if and when the life tenant dies without issue. Such election extinguishes the power of sale as set forth in the will. Duckworth v. Jordan, supra. This view is supported in 19 Am.Jur.—Equitable Conversion, sec. 30, p. 23 et seq., where it is said: "It is a well settled rule in equity that where a testator directs land to be sold and the proceeds thereof distributed among certain designated beneficiaries, such beneficiaries may elect, before the sale has taken place, to take the land instead of the proceeds. When they have so elected and sufficiently manifested their election, the authority to sell the land cannot thereafter be exercised by the executor, but is extinguished. The estate is thereby reconverted into real property, and, by reason of such reconversion, the relation of the beneficiaries to the land is the same as if it had been directly devised to them. This right of election rests upon the presumption that the power of sale given to the executor was intended for the benefit of the beneficiaries and that since they are the absolute owners of the land, they have the right to direct its disposition".

The owner of the life estate and all the remaindermen, having approved and executed the proposed lease, and each one of them being sui juris, such parties, as well as those inheriting from or through them, would be bound by the provisions contained in the lease, and by the election to take the real property in lieu of the proceeds from the sale thereof. Buffaloe v. Blalock, N.C., 59 S.E.2d 625.

In the light of the facts disclosed by the record herein, we hold that the court below, in the exercise of its equity powers, had ample authority to approve the execution of the lease under consideration by the Wachovia Bank & Trust Co., as Executor of the last will and testament of Laura L. Allen and to decree that the remaindermen take the property in its unconverted form, if and when Ann Irene Allen should die without issue.

Moreover, we think the proposal to lease the property, and forego a sale thereof, might well be construed as an agreement in the nature of a family settlement, or as a contract for the final settlement of the estate. Kirkman v. Hodgin, 151 N.C. 588, 66 S.E. 616.

The judgment of the court below will be upheld.

Affirmed.