S. F. Beach, for the appellees. BURKS, J., delivered the opinion of the court. There can be no doubt, both upon principle and authority, that the execution by Mrs. Minor, in conjunction with her husband, either as principal or surety, of the bond for two thousand dollars, the payment of which with the interest thereon, the appellant is seeking to enforce, operates a general charge upon her separate estate, and that the several deeds of trust on the "Greenway" farm, to the extent of her interest therein, which is the principal portion of said estate, are specific liens on said interest, unless her power to alien or encumber her separate estate was restrained or denied by the instruments creating it. McChesney &als. v. Brown's heirs, 25 Gratt. 393; Burnett & wife v. Haupe's ex'or, Id. 481; Darnall & wife v. Smith's adm'r &als., 26 Gratt. 878; Bank of Greensboro' v. Chambers &als., 30 Gratt. 202; Justis v. English & als., Id. 565, and cases there cited. See also Garland v. Pamplin & als., 32 Gratt. 305. She derived her interest in one-third part of the farm under the will of her father, Charles J. Catlett, who died in 1845, and in two-thirds under the deed of her husband, executed June 12, 1865. The conveyance by this deed is to T. Parkin Scott, in trust, as declared, "for the sole and separate use, benefit and behoof of the said Louisa Fairfax Minor, wife of the said John West Minor, during her natural life, and for the use of the heirs of the said Louisa Fairfax Minor after her death, in the manner and form as set forth and provided in the will of the said Charles J. Catlett as aforesaid." We are thus referred by the deed to the will, and the extent of the wife's power over the estate created 1880. March Term. Ropp V. Minor &als. 1880. by the former is to be ascertained and measured by March her Term. power over the estate given by the latter. V. By his will, the testator, after giving to his wife an Ropp annuity of one thousand dollars during her life and Minor charging his whole estate with its payment, gives to &als. his son Erskine Catlett and to his daughter-in-law Esther Ann Catlett and to their heirs respectively, each one-third part of his whole estate subject to the annuity bequeathed to his wife. The remaining third part he gives to his daughter Mrs. Minor by the following clause: "I give and devise one other third part or portion of my whole estate, real, personal or mixed of every kind and description whatever which I may die possessed of or owning, to my daughter-in-law, Esther Ann Catlett, and her heirs, in trust for the use, benefit and behoof of my daughter Louisa Fairfax Minor, wife of John West Minor, during her natural life, and for the use of the heirs of my said daughter after the death of my said daughter, subject to the annuity aforesaid; and my will is and I hereby empower and require the said Esther Ann Catlett, trustee as aforesaid, as soon as convenient and practicable after having received the said legacy, or proceeds of said devise, to loan out the same at interest on good and sufficient security by bond and mortgage on unincumbered real estate and to apply the interest or income which shall or may arise, accrue or be derived therefrom to the payment and discharge of all the expenses and charges necessary and required for the proper maintenance, support and comfort of my said daughter Louisa, or the said trustee may, if she shall in her discretion deem it proper, pay over the interest or income aforesaid to my said daughter, Louisa, semi-annually in money on her sole and separate receipt independent of any interference, hindrance or control of her husband or by him; and the said interest or income shall not be liable or taken for her husband's debts or contracts, nor be applied to the payment thereof, or any part thereof." By a subsequent clause, the executors are empowered and directed to sell his property, and from the proceeds of sale, first pay his debts and funeral charges; next, set apart a sum, the annual interest or income from which will be sufficient to pay the annuity to his wife, and then, in the language of the will, "pay the three other legatees named in this my last will and testament as hereinbefore mentioned and directed. He further directs, that the principal sum set apart to provide the annuity to his wife, shall, on her demise, be equally divided among the legatees aforesaid. By a codicil, he gives all his personal property to his son Erskine, and declares it to be his will and desire that the sale of his real estate shall not take place until after the death of his wife. We are of opinion, that by the provisions of this will, the whole estate of the testator was equitably converted into money. It is well settled, that land directed or agreed to be sold and turned into money (upon the principle that what is agreed or ought to be done is considered as done) shall be treated as assuming the quality of personalty, and as continuing impressed with that character, until some person entitled to the proceeds shall elect to take the subject in its original character of land. Per Baldwin, J. in Siter Price & Co. v. McClanichan and others, 2 Gratt. 280, 294. See also Fletcher v. Ashburner, and notes, English and American, 1 Lead. Cas. Eq. Part 2, (4th Ed.), 1118 et seq; Craig v. Leslie, 3 Wheaton R. 563; Harcum's adm'r v. Hudnall, 14 Gratt. 369 and cases there cited. In the last named case, it is said, (p. 377), that no discrimination appears to be made in this doctrine of 1880. March Term. V. "equitable conversion" between the case of a conversion which is not required to be made at any particular period, and which therefore, in case of a will, should Ropp be made presently after the death of the testator, and Minor one in which the conversion is to be made at some &als. future period prescribed. In the latter case, "we must consider the property as converted from the time when it ought to have been converted." Per Cranworth, Lord Chancellor, Ferrie v. Atherton, 28 Eng. Law and Eq. R. 1. To have the effect in equity of a conversion, the direction to sell must not be merely optional. It must be imperative. Tazewell and others v. Smith's adm'r, 1 Rand. 313, 320. The intention, however, to convert may be implied without express words directing a sale. It is sufficient if such intention be clear. 1 Lead. Cas. Eq. (4th Ed.), 1138. * * * "I Looking to the clause which authorizes the sale, the language in the first part is mandatory. do hereby authorize, empower, and direct my executors * * * to sell and dispose of," &c. In Green v. Johnson, 4 Bush (K'y) R. 164, the language of the will was, "I authorize and request my executors * * * to sell and convey all my lands, except," &c. The word "request request" was considered as synonymous with "require-direct-order," the latter words being regarded as mandatory. By the will of Charles J. Catlett, the only discretion given to the executors is as to the time or times and manner of sale of the different portions of the property. In a case in New York, where a like discretion was given, the direction to sell was nevertheless considered imperative. Stagg v. Jackson, 1 Comstock R. 206. If the clause directing the sale be read, as it should be, in connection with the other parts of the will, and especially with the clause already quoted, which makes provision for Mrs. Minor, the intention to convert the estate into money is clearly manifested: for, the provision and the only provision made for her presupposes a sale, one-third part of the proceeds of which is required to be put out on loan for her benefit. In Phelps' ex'or v. Pond, 23 New York R. 69, where a testator authorized his executors to sell real estate, and it was apparent from the general provisions of the will, that he intended such estate to be sold, the doctrine of equitable conversion was applied, although the power of sale was not in terms imperative. See also Power v. Cassidy, 9 Reporter 351; Burr v. Sims & als., 1 Wharton (Penn.) R. 252, 262. The entire real estate of the testator being equitably converted into money, the important inquiry is, what limitation or restraint, if any, was placed upon the power of Mrs. Minor to alien or encumber the portion given in trust for her? And here it may be remarked that the same rule applies, which has been already adverted to as applicable in determining the question of equitable conversion. The restriction need not be expressed in negative words. No particular phraseology is required, but the intention must be clear. It is sufficient if the intention can be gathered from the whole instrument. 2 Perry on Trusts, § 670 and cases cited; Freeman, adm'r v. Flood, 16 Ga. 528. In Bank of Greensboro' v. Chambers & als., 30 Gratt. 202, restraint upon alienation was deduced by construction from the instrument as a whole. In the opinion in that case, it was said, "We do not find in the deed of settlement in this case any express interdiction or limitation of the jus disponendi and of the incidental power to encumber and charge the separate estate to an extent involving alienation, but, if by a fair construction of the instrument, the exercise of 1880. March Term. Ropp V. Minor &als. |