Collins v. Champ's Heirs , 54 Ky. 118 ( 1854 )

Judge Stites

delivered the opinion of the Court.

' This is an agreed case, and the only question presented for our consideration is, whether the money arising from the sale of the land, in the hands of the commissioner in chancery, was properly deemed real estate for purposes of distribution.

1. It is a well established doctrine that money directed to be employed in the purchase of land and land directed to be converted in money, are to be considered and treated as that species of property into which they are directed to be converted, and so treated in the distribution of estates, without regard to the manner in which the direction is given, whether by will, marriage contract, settlement, or otherwise. (1 vol. Powell on Devises , 60 ; Williams on Ex’ors, 1 vol. 414.) So land purchased bythe guardian of an infant, with his personal estate, will be treated as personalty. (Ib. 418.)

The petition for the sale of the real estate was filed by the guardian of the infant, for the express purpose of converting the land then held by him into other real estate more advantageous to his ward. The decree directing the sale obviously contemplated a reinvestment of the proceeds in other lands, otherwise it would not have directed the commissioner and guardian to report to the court “an abstract of the title to the land proposed to be purchased.” But before the investment was made by the commissioner, and whilst the money was in his hands subject to the control of the court, the infant, Henry C. Champ, died, leaving a widow but no children.

It is an established doctrine in courts of equity, that things shall be considered as done which ought to have been done, and no rule is better settled, than that money directed to be employed in the purchase of land and land directed to be sold and converted into money, are to be considered as that species of property into which they are directed to be converted, and this in whatever manner the direction is given, whether by will, contract, marriage settlement, or otherwise. (Powell on Devises, volume 1, 60; Williams on Ex’ors, volume 1, 414; Loughborough vs. Loughborough, 14 B. Monroe;) so lands purchased by the guardian of an infant with his personal estate will, in' case of his death during his minority, be considered still as his personal property; so also where the committee of a lunatic invested part of his personal estate in lands in fee, it was held that they should be taken as personalty, and at his death not go to the heir at law. (Williams on Ex’ors, vol. 1, 418.) And we can perceive no good reason why the rule should not operate in the present case. The fund is placed by the instrumentality of the guardian under the control of the Chancellor, with the assent of the infant, as he alleges, for a certain .purpose, and incipient steps taken to accomplish that end. It was considered by all parties as a fund for that purpose, and in our opinion the Chancellor' did not err in treating it as realty for purposes of distribution and applying the rules applicable to realty in making division between the widow and heirs.

2. If a guar dian be charged with interest on the fund of the infant in his hands in the report of an auditor appointed to report the state of his accounts, and there be no exception to the report in the court below, it will not be noticed in this court.

In reference to the error assigned by Collins, on the score of an improper charge of interest, it is only necessary to say that it is now too late to raise that question. He should have excepted to the report in the court below, and the presumption -arises from his failure thus, to except that he used the money which came to his hands, and was properly chargeable with interest.

The decree of the Circuit Court is affirmed.