siduary clause or whether it passes as intestate property. If a portion of the property has been sold and the purpose and intent of the testator has been satisfied, and there still remains some property undisposed of, it will devolve in the same manner. If a sale has already been consummated and a balance remains because of the fact of the purpose being satisfied or having failed in part, such balance will pass the same as the original property would have passed, to the heirs or residuary beneficiaries, as the case may be.62 However, where it is necessary that a sale take place in order to fulfill the testamentary purpose of the testator and a physical conversion is effected, such as changing land into money, although the surplus money will be considered as land in so far as the estate of the testator is concerned, yet should the heir or residuary devisee die subsequent to the testator, the sur-. plus money will go to his personal representatives as

62 Shallcross v. Wright, 12 Beav. 505; Bagster v. Fackerell, 26 Beav. 469; Hilton v. Hilton, 2 McArth. (D. C.) 70; James v. Hanks, 202 Ill. 114, 16 N. E. 1034; Harker v. Reilly, 4 Del. Ch. 72; Cronise v. Hardt, 47 Md. 433; Orrick v. Boehm, 49 Md. 72; Rizer v. Perry, 58 Md. 112; Stake v. Mobley, 102 Md. 408, 62 Atl. 963; Moore v. Robbins, 53 N. J. Eq. 137, 32 Atl. 379; Canfield v. Canfield, 62 N. J. Eq. 578, 50 Atl. 471; Girand v. Girand, 58 How. Pr. (N. Y.) 175; Jones v. Kelly, 63 App. Div. 614, 72 N. Y. Supp. 24; Read v. Williams, 125 N. Y. 560, 21 Am. St. Rep. 748, 26 N. E. 730; Lindsay v. Pleasants, 39 N. C. 320; In re Rudy's Estate, 185 Pa. St. 359, 64 Am. St.

Rep. 654, 39 Atl. 968; Yerkes v. Yerkes, 200 Pa. St. 419, 50 Atl. 186; Phillips v. Ferguson, 85 Va. 509, 17 Am. St. Rep. 78, 1 L. R. A. 837, 8 S. E. 241; Gallagher v. Rowan's Admr., 86 Va. 823, 11 S. E. 121; McHugh v. McCole, 97 Wis. 166, 65 Am. St. Rep. 106, 40 L. R. A. 724, 72 N. W. 631.

As to whom the benefit of lapsed and void legacies accrues, see §§ 681, 777-781.

Where there is a partial failure of the purpose of conversion in the case of land directed to be turned into money, the undisposed of surplus will revert to the heir of the testator, and not to his personal representative.-Ackroyd v. Smithson, 1 Bro. C. C. 503.

money, even though the sale may be effected subsequent to his death.63

The testator may, however, by positive directions in his will show that it is his intention that real property directed to be sold and converted into money shall not pass as realty, but as personalty. He may blend his real and personal estate and direct the sale of the same to form a fund to be distributed as personal property. In such a case conversion will be effected by the testator's direction even though his purpose may fail in part."

§ 811. Realty Converted Into Personalty Does Not Bar Dower, But Otherwise Is Distributed as Personalty.

A widow who is not provided for or mentioned in the will of her husband may claim her dower rights. By so doing she does not make an election which deprives her of other rights in her husband's estate. If the will directs that the real property be converted into money, the proceeds must be treated as personalty for all purposes, except as to dower, including the right of the widow unprovided for by the will of her husband to claim a distributive share in his personal estate. She is not estopped from making such demand although she elected to take the value of her dower interest in money.65

63 Wall v. Colshead, 2 De Gex & J. 683; Ackroyd v. Smithson, 1 Bro. C. C. 503; Smith v. Claxton, 4 Madd. 482, 492; Wright v. Wright, 16 Ves. Jun. 188; Craig v. Leslie, 3 Wheat. (U. S.) 563, 4 L. Ed. 460; Wood v. Cone, 7 Paige Ch. (N. Y.) 471; Wright v. Trustees of M. E. Church, Hoff. Ch. (N. Y.) 202; Lindsay v. Pleasants, 4 Ired. Eq. (N. C.) 320;

North v. Valk, Dud. Eq. (S. C.) 212; Gallagher v. Rowan's Admr., 86 Va. 823, 825, 11 S. E. 121.

64 Craig V. Leslie, 3 Wheat. (U. S.) 563, 4 L. Ed. 460; Hutchings v. Davis, 68 Ohio 160, 67 N. E. 251; Harrington v. Pier, 105 Wis. 485, 76 Am. St. Rep. 924, 50 L. R. A. 307, 82 N. W. 345.

65 Hutchings v. Davis, 68 Ohio 160, 67 N. E. 251. See, also, Fer

§ 812. Reconversion Defined: How Effected.

The doctrine of constructive conversion is based on equitable principles. Realty directed to be sold is considered as personalty in a proper case even before sale, but this only to carry out the intent and purpose of the testator. The beneficiaries under the will are likewise to be considered; after the death of the testator, and all claims against the estate are satisfied, they are the principal parties in interest. No reason exists why the legatees of the proceeds of realty directed by the testator to be sold can not by unanimous consent accept the property in its original form. This does not prevent the first equitable conversion, but is rather deemed a reconversion.66 If all the beneficiaries interested elect to take the property in its original form, then the power of sale under the will is extinguished." If the rights of but a single beneficiary are involved and he is capable of acting, his election alone will suffice. If more than one are interested the consent must be unanimous68 and must be manifested by some unequivocal act or declaration. If the recon

guson v. Stuart's Exrs., 14 Ohio 140; Collier v. Collier's Exrs., 3 Ohio St. 369, 374.

Effect of widow accepting provision in will in lieu of dower, see post, §§ 826-829.

€6 Pearson v. Lane, 17 Ves. Jun. 101; Craig v. Leslie, 3 Wheat. (U. S.) 563, 4 L. Ed. 460; Swann V. Garrett, 71 Ga. 566; Baker v. Copenbarger, 15 Ill. 103, 58 Am. Dec. 600; Sears v. Choate, 146 Mass. 395, 4 Am. St. Rep. 320, 15 N. E. 786; Prentice v. Janssen, 79 N. Y. 478; Mellen v. Mellen, 139 N. Y. 210, 34 N. E. 925.

67 Duckworth v. Jordan, 138 N. C. 520, 51 S. E. 109.

68 Bank of Ukiah v. Rice, 143 Cal. 265, 101 Am. St. Rep. 118, 76 Pac. 1020; In re Pforr's Estate, 144 Cal. 121, 77 Pac. 825; Strode v. McCormick, 158 Ill. 142, 41 N. E. 1091; Lash v. Lash, 209 Ill. 595, 70 N. E. 1049; Scott v. Douglas, 39 Misc. Rep. 555, 80 N. Y. Supp. 354; Duckworth v. Jordan, 137 N. C. 520, 51 S. E. 109; Shallenberger v. Ashworth, 25 Pa. St. 152; Harcum's Admr. v. Hudwell, 14 Gratt. (Va.) 369.

69 Boland v. Tiernay, 118 Iowa

version is effected by a reconveyance, all must join. A reconveyance by only one of several interested beneficiaries will not operate as a reconversion of his interest.70 Should any of the beneficiaries be incapable of acting, because of infancy, insanity, or other cause, election can be made for them only by sanction and order of the court after due hearing.71

59, 91 N. W. 836; Mellen v. Mellen, 139 N. Y. 210, 34 N. E. 925; Wayne v. Fouts, 108 Tenn. 145, 65 S. W. 471.

70 Bank of Ukiah v. Rice, 143 Cal. 265, 101 Am. St. Rep. 118, 76 Pac. 1020; Baker v. Copenbarger, 15 Ill. 103, 58 Am. Dec. 600; Ebey v. Adams, 135 Ill. 80, 10 L. R. A. 162, 25 N. E. 1013; Lash v. Lash, 209 Ill. 595, 70 N. E. 1049; McDonald v. O'Hara, 144 N. Y. 566, 39 N. E. 642.

71 Duckworth v. Jones, 137 N. C. 520, 51 S. E. 109.

Compare: Bank of Ukiah v. Rice, 143 Cal. 265, 101 Am. St. Rep. 118, 76 Pac. 1020.

See, post, § 825.

A court may so order if for the best interests of an infant legatee. -Swann v. Garrett, 71 Ga. 566.

A married woman may elect to take land instead of money, but she can do so only under the same forms and solemnities as are required by law to enable her to convey a fee. - Baker v. Copenbarger, 15 III. 103, 106, 58 Am. Dec. 600.

the

DOCTRINE OF ELECTION AS APPLIED TO WILLS.

§ 813. Election defined.

§ 814. Immaterial whether or not testator knew he did not own the property disposed of.

§815. When presumption arises that testator intended to dispose of his own property only: Community property.

§816. The same subject: Where testator had only a partial inter-
est in property devised.

§ 817. Doctrine of election founded on equitable principles.
§818. Nature of cases calling for election.

§ 819. Manner in which intent to put widow to her election must
be expressed.

§820. The same subject.

§ 821. The same subject: No absolute rule.

§ 822. Gifts in trust, of life estates, or of income.

§ 823 Right of election is personal: Reasons for election immaterial.

§824. The same subject: Creditors can not force survivor to claim statutory rights as against the will.

§ 825. Court may make election for donee if he be alive but incapable of acting.

§826. Acts constituting election.

§ 827. Election made through ignorance, fraud or mistake may be repudiated.

§828. Election by estoppel.

§ 829. The same subject: Where the widow is executrix.

§830. The same subject: Effect of acceptance of benefits under

will.

§831. What law governs election in case of conflict.

§832. Waiver of dower includes claim of dower in lands conveyed by husband alone during coverture.