This section is from the book "Popular Law Library Vol7 Equity Jurisprudence, Trusts, Equity Pleading", by Albert H. Putney. Also available from Amazon: Popular Law-Dictionary.
The equitable doctrine of conversion grows out of the maxim that "Equity considers that as done which ought to be done." Equitable conversion is defined as that change in the nature of property by which, for certain purposes, real property is considered as personal and personal property as real, and transmissible as such.
"For illustration, if money had been given by will or deed to trustees upon trust to purchase land therewith and convey same to A in fee, and A died before the trustees had made the purchase, and while the money was in their hands, the important question as to A's interest would for the first time practically arise: was that interest real estate, so that it descended to A's heirs if he died intestate, or was it personal estate, so that it devolved upon his administrators? Would it pass by a general bequest of personal property, or by general devise of lands? If A was a married man, was his widow entitled to dower in it? If A was a married woman, was her husband entitled to curtesy? Where the parties to a contract for the sale of land die before execution, are the vendee's heirs or his personal representatives entitled to the benefit of the agreement? Does the purchase-money, when paid, belong to the heirs or to the administrators of the vendor? These are the kinds of questions which are determined by the doctrine of conversion; and their solution depends upon the nature of the estates resulting from the operation of that doctrine upon the interests of the original parties to the will, deed, or contract. No other doctrine is perhaps more important in the equity jurisprudence of England, both because such trusts by wills, deeds, and family settlements are there very frequent, and because the common-law difference between the descent of land and the succession of personal property is still preserved in all of its integrity. The applications of the doctrine to settlements often gives rise to questions of great difficulty. In our own country the doctrine is theoretically adopted in all the states; but its applications are much less frequent and more simple than in England. With us, trust estates and family settlements are comparatively very few, and the tendency of modern legislation in many of the states is towards a uniformity in the rules of law which regulate the descent of lands and the devolution of personal property. In a few of the states the difference has been completely abolished, and both real and personal estate devolve in the same proportions to the same parties. It necessarily follows that many of the questions connected with conversion of the most frequent occurrence and of the highest importance in England are practically unknown in this county." 9
8 Codington vs. Lindsay, 8 Ch. App., 578; Brown vs. Ward, 103 N. C., 178; 9 S. E., 300. This is the rule now generally followed; some cases, however, hold that where the donee elects against the instrument he forfeits all rights thereunder. See Hibbs vs. Insurance Co., 40 Ohio St., 545; Thellusson vs. Woodford, 13 Ves., 220.
The nature of this doctrine was discussed by the court in the case of Keller vs. Harper,10 the decision in which case was in part as follows:
"In the Circuit Court for Frederick County, sitting in equity, a bill of complaint was filed by Charles V. S. Levy, administrator de bonis non cum testamento annexo, of Jacob Keller, deceased, for the purpose of obtaining a judicial construction of the will of said decedent, who departed this life in the year eighteen hundred and fifty, after having made a testamentary disposition of his property by will and codicil, which were duly admitted to probate by the Orphans' Court of said county. During his life the testator had contracted two marriages. He had two children by the first marriage, and six by the second. The children of the first marriage were both daughters, one of whom, Ann E., married James Harkey, and the other Richard Harper. The testator's second wife survived him. His daughter, Mrs. Harkey, died intestate and without issue in the year 1852 or 1853, and her husband died a few years afterwards, prior to the decease of the widow of the testator. Mrs. Harper died, leaving two children, Richard K. Harper, and Charlotte Snook, who are her heirs at law. The husband of Mrs. Harper is now deceased.
9 Pomeroy on Equity Jurisprudence, note to Sec. 1159, Student's Edition. 10 64 Maryland, 74.
"As Mrs. Harkey died intestate and without issue, her sister of the whole blood would inherit any real estate belonging to her which she had acquired by purchase and would transmit it by descent, to her heirs at law, by dying intestate. The proceeds from the sale of the real estate of Jacob Keller, whether sold during the lifetime of his widow or since her death, have been distributed in the Orphans' Court of Frederick County, and paid out, except that portion assigned by such distribution to the heirs of Mrs. Harkey. The question now to be determined is, who are the heirs of Mrs. Harkey? If by the operation of the terms of the testator's will, his real estate, although not sold until many years after his death, underwent a transmutation and was converted into personalty, there could be no distinction between the whole and the half blood, who would be entitled to share equally in the distribution. If, on the other hand, the real estate was not, in conformity with the principles of equitable conversion, transformed into personalty anterior to an actual sale, then the heirs at law of Mrs. Harper, the sister of the whole blood, would be entitled to the distributive share of Mrs. Harkey, who had died intestate and without issue.
"The appellees, as the descendants of a sister of the whole blood, claim to the exclusion of the children or descendants of the children of the testator's second wife, on the ground that the will did not so operate as to cause a transmutation or conversion of the realty into personalty prior to the period when the property was sold.
"By a fundamental principle in equity, long established and universally recognized, land is considered as converted into money even anterior to a sale when a sale has been directed; and courts of equity will deal with such real estate as personalty in anticipation of the consummation of the testator's intention when such intention has been unequivocally declared. There must, however, be an imperative and unequivocal direction to sell the real estate, and when the power to sell requires the consent of the parties interested, there is no conversion until such consent is given. And when the sale is dependent upon a contingency, there is no transmutation until the contingency has happened. As said by Lord Cranworth, Chancellor, 'We must consider the property as converted from the time when it ought to have been converted.' And another important rule is that as courts are averse to sanctioning a change in the quality of an estate, if there is any doubt as to the intention of the testator, the original character of the property will be retained. The basis of all the decisions is that the intent of the testator is the great guide in determining the question whether there has been an equitable conversion of the realty into personalty.'
"The learned judges in the Circuit Court, in a very able and lucid application of the principles established by the authorities cited, say:
" The order or direction in this will, for the conversion of the land into money, cannot be said to be "absolute and imperative" in the sense in which those terms are used by the courts and by the text writers on the subject. First, the executors must sell if the widow marries; next, they may sell with the widow's consent; then they shall sell all the estate, if the specific devisees refuse to take; and at her death the executors must sell all that had not been previously sold. And the different provisions of the will are put together in such a confused manner, and the time when, and the conditions or contingencies upon which the sale or sales may or must be made, are so uncertain that the court must have great doubt that the conversion operated from the death of the testator, and must therefore conclude that as to the property which was sold prior to the decease of the life tenant, the conversion took place at the time of sale, and as to the property sold after the death of the widow, the conversion was at the time of her decease. In other words, the intention to turn the land into money prior to the sale or decease of the widow, not so clearly appearing as is required in Lynn vs. Gephardt, the property retained its original character as just stated, there having been no equity between the heirs and next of kin. Mrs. Harkey having died shortly after her father, and before the death of her stepmother, and before the time within which she could elect to take the house and lot devised to her, and before any of the property was sold, and as it still retained its character as land, her share in the estate vested in her as realty. And, as she took an interest different in quality and quantity under her father's will, from what she would have taken by descent, she took by purchase.'
"The language of the Circuit Court has been transcribed and adopted because it is apparently impossible to furnish a clearer exposition and application of the principles governing and controlling this controversy. And the final conclusion of the court is equally correct when it says:
"Upon the facts alleged in these proceedings and admitted by the parties who have appeared, that Mrs. Harkey died intestate and without issue, and her husband is now dead, her interest under the Code, Art. 47, Sec. 19, passed as real estate to her heirs at law, who are Richard K. Harper and Charlotte Snook, the only descendants of Sophia Harper, her only sister of the whole blood.' "