1877. July Term. Shanks V. & als. respondent, and even if, as claimed by some of the creditors, this respondent's interest in the land was derived by the investment of personal assets in real estate, before it could be taken as her husband's absolute estate, it would have to be reached through a court Edm'dson of equity; and such a court would do it only upon terms of making an equitable settlement upon this respondent. But respondent insists, that at the time. of her marriage her estate was real in her portion of the one-half of the Bellevue estate, in which she has a remainder in fee after the termination of her husband's life estate, and that all that this court will now sell is her husband's life estate. And further answering, respondent says that she is advised that even if her mother, Mrs. Maria Lewis, had invested her personal estate in real estate, and took the deed to herself, respondent claims that she held the land as an implied trustee for respondent. And respondent has the right to elect to take it as real or personal estate, and she has elected as far as she could, and still does desire and elect to hold it as real estate, and asks this court to protect her interests. The circuit court of Roanoke held, by its decree of the 14th July 1874, that the said Lucy Shanks has no interest in the real estate conveyed by her husband to the complainants as trustees by deed of 15th June 1872, except a right of dower therein, contingent upon her surviving her said husband. From this decree Mrs. Shanks obtained an appeal, awarded by one of the judges of this court. The question we have to determine is, "what interest does Mrs. Lucy Shanks (the appellant) take in the land conveyed by her husband to Edmondson and Blair, trustees?" Has she only a contingent right of dower, as declared by the circuit court, or has she title to oneVOL. XXVIII-102 Shanks V. Edm'dson & als. 1877. third of one moiety of the land subject only to her July Term. husband's rights as tenant by the curtesy? This depends upon the nature and character of the estate she derived from her father, and whether it was real or personal estate at the time of her marriage. The conceded facts in the case show that Mrs. Maria Lewis, the mother of the appellant, was the administratrix of her husband, Andrew Lewis, and that as such administratrix she having in her hands, after payment of his debts, a considerable sum of money, invested the same in certain real estate in the county of Roanoke, taking from the vendor a deed, conveying the title to herself. This deed was made in the year 1830. Mrs. Shanks was married in the year 1838. In 1842, the deed above referred to between Mrs. Lewis and her children and sons-in-law, was executed. Now, up to the time of this deed, the children of Mrs. Lewis had a claim upon her as administratrix of her husband (and their father, Andrew Lewis,) for the money which came into her hands as administratrix. She having invested that money in real estate, it was certainly competent for them, if they elected so to do, to accept the land in lieu of the money due them, and if they chose so to do, could have compelled a division of the land among them (if it was susceptible of such division), and each one have taken his or her portion of the land, and given an acquittance to the administratrix of all claim against her on account of the money collected and invested by her. If this had been done before the marriage of Mrs. Shanks, or even afterwards by the husband and wife conjointly, then Mrs. Shanks' interest, as well as that of all the children of Andrew Lewis, would have been an interest in real estate, and she could have held the same against her husband's creditors. But no such 1877. July Term. Shanks V. & als. division of said land was made; but the recitals in the deed show that the parties to that deed regarded the land as representing the money which was in the hands of the administratrix. There is nothing to show in the record, nor is it claimed in argument here, that Edm'dson Mrs. Shanks, before marriage, and after infancy, made her election to take her interest in the land in which her mother, as administratrix of her father, had invested the money in her hands. It is neither alleged nor proved that there was any election on the part of Mrs. Shanks before marriage. Indeed no such election could have been made before marriage, because she was then an infant, having married before she arrived. at twenty-one years of age. The recital in the deed that Shanks and wife had "an equitable interest" in said land, is plainly only a declaration that they had such an interest in equity as against the legal title of Maria Lewis as a court of equity would uphold upon the doctrine of resulting trusts, and hold the land bound for the money belonging to the estate of Andrew Lewis, and which she had invested. This recital cannot be held as proof of an election on the part of Mrs. Shanks, especially as she was then a married woman and incapable of making an election. See Siter, Price & Co. v. McClanachan & als., 2 Gratt. 280, 296; Pratt v. Taliaferro, 3 Leigh 419. After marriage the election could only be made by the husband and wife conjointly. In this case the election was made by the husband alone. And he having complete dominion and control of the subject, his election would enure to his sole benefit, unless it be shown that such election was made for himself and wife jointly. 2 Gratt. 296. In this case all inferences, which might be drawn from the recital of the deed, are rebutted and ex July Term. Shanks V. & als. 1877 plained from the fact that in the deed relied on, the land is conveyed to George W. Shanks, "to have and to hold the same to him, his heirs and assigns, to the only proper use and behoof of them, the said George Edm'dson W. Shanks and his heirs and assigns forever." It thus appears that there was no election on the part of Shanks, the husband, to hold the land in behalf of himself and wife, but on the contrary, he had the title conveyed to himself; which excludes the idea of any election on behalf of himself and wife conjointly. The legal principles governing this case are well settled, and clearly defined by the decisions of this court, as well as by the recognized rules of courts of equity, and may be briefly and succinctly stated as follows: 1. Where money belonging to another is invested in real estate, and the title is conveyed to the party using the money not his own, such real estate will be held, upon the doctrine of resulting trusts, to be in the hands of the grantee as a trustee for the party whose money has been appropriated. 2. Such party, whose money is so appropriated, may, at his election, either claim the money, and go against the land as security for its payment, or he may claim the land itself, if he elects so to do; and a court of equity will, upon such election being distinctly shown, by a person sui juris, decree to such person the land in the place of the money which purchased it. 3. A wife during coverture has no power to make such election. But the husband may, in behalf of himself and wife, make such election, when it appears that he acted for his wife, or for himself and wife conjointly. 4. The election to hold such real estate, either by a person sui juris, or by a married woman, made by her husband in her behalf, or conjointly with himself, must be plainly and distinctly proven, and cannot be left to mere inference, unless such inference is so strong from all the circumstances as to be equivalent to positive proof of a clear intention so to elect. See Siter, Price & Co. v. McClanachan, 2 Gratt. 280; Pratt v. Taliaferro, 3 Leigh, 419; Commonwealth v. Martin's ex'ors, 5 Munf. 117, 128; Harcum's adm'r & als v. Hudnall, 14 Gratt. 369, 378, 379; Thornton v. Thornton, 3 Rand. 179; Craig v. Leslie, 3 Wheat. R. 563, 578, 585, 586; 2 Story's Eq., § 1210, 1211; 1 Lead. Cas. in Eq., pt. 1st, vol. 1st, 335 to 342; Ib. § 793. Applying these principles to the case before us, it is clear: 1, That no election was made by Mrs. Shanks before marriage; and 2, That no election was made by George W. Shanks on behalf of himself and wife; but on the contrary, the fact that he took the deed to himself repels the presumption that might otherwise possibly arise from the recitals in the deed, and conclusively shows that he elected to take for himself that which the law gave him by virtue of his marital rights. It is clear upon the facts in this case, that upon the marriage of Lucy Lewis with George W. Shanks, she having made no election, had no interest in the real estate held by her mother as real estate, but only a claim upon her mother as administratrix for her proportion of the money which she was entitled to receive as one of the distributees of her father's estate. This was upon her marriage nothing more than a chose in action, which, upon a reduction into possession, belonged to her husband. The adjustment made by the deed before referred to between Mrs. Maria Lewis and her children and son-in-law was, upon the part of 1877. July Term. Shanks V. Edm'dson & als. |