Opinion of the Court, per MILLER, J.

investments or the payment of interest, or the division at any particular time of the avails, or any provision from which it might be fairly inferred that any such intention existed.

In Cookson v. Reay (5 Beavan, 22), the testator directed that a sum of money be invested "in land or some other securities" for the benefit of one for life with remainder to his children, "and in failure of these to A. and his heirs forever," which money had not been invested in land, held to have originally been impressed with the character of real estate, but, by the subsequent dealings therewith by the parties beneficially interested, to have acquired the quality of personalty. It was also decided that the words "other securities" applied to an ad interim investment before a purchase of land could be procured. It will be seen that the question was whether the direction included both kinds of securities, and the court confined the final investment to the land alone. As the case turned upon the words used and the direction was distinct as to the land, it can hardly be regarded as involving a question of equitable conversion, nor is it analogous to a case where there are no explicit directions from which it may be implied that a conversion was intended.

In Earlom v. Saunders (Ambler, 241), the testator directed £400 to be invested in the purchase of land or any other security as the trustee should think fit and convenient, to be settled as his last devise. The estate having passed to an infant who made a will, and the £400 not having been laid out as directed, it was held that it did not pass by the will as money and that the trustees had no right to consider it as money or land and the infant could not, and that the true construction was that it was to be invested in securities until lands could be purchased. We do not see that this

case directly bears upon the question involved in the consideration of the words last cited from the clause of the will in con

troversy.

The case of Cowley v. Hartstonge (1 Dow. 361), was decided upon the intention of the testator as collected from the whole of the will, the terms of which are clearly different SICKELS VOL. L.

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from those of the will now presented for consideration, and we think it does not affect the question discussed.

In Hereford v. Ravenhill (5 Beavan, 55), the testator directed his trustees to invest his personal estate in freehold and other kinds of real estate upon certain trusts which were applicable to realty, and it was held that a conversion into real estate was intended. In that case there was a manifest intention to convert into realty, expressed in the will itself, while here the words we have considered do not import any such intention.

After a careful examination of the authorities relied upon we cannot resist the conclusion that none of them uphold the rule that the language in the clause of the will which has been cited and specially considered, authorizes the holding that an equitable conversion of the real estate into personalty was intended by the testator.

The use of the term "accumulated interest" in connection with the direction to divide may well be held to apply to an investment of personal property. All the residue and reremainder is to be divided and it embraces real as well as personal estate. That no provision was made specifically in regard to the rents and profits, while it evinces a want of exactness in the draftsman, does not show that the intention existed to convert the real estate into personalty.

The words "divided equally" are alike applicable to real and personal property and may very appropriately be used in reference to both.

In Burrell v. Baskerfield (11 Beav. 525), which is cited and relied upon by the appellants' counsel as an authority for the division of both real and personal property as one fund, the testator by his will gave full power to his executors to collect and sell the real estate and convert his funded property into money and then to pay certain legacies. and divide the whole of his property as directed, and the court held that the real estate ought to be considered as converted into personalty. It will be noticed that here was express authority and explicit directions as to the conversion of the

Opinion of the Court, per MILLER, J.

real estate, and hence the case at bar differs entirely from the one cited. Here no such disposition of the real estate is

authorized or directed.

The direction that the estate shall be divided among the testator's grandchildren and be held by them "so distributed" may be regarded as referring to the first part of the same clause of the will in which the distribution is made of the residue and remainder of both real and personal estate, and must be interpreted in connection therewith. The real estate as well as the personal is to be divided, and conceding that the power existed in the executors to sell, it could only be exercised at the time when distribution was to take place, as the will provided--at the death of the last life annuitant.

The duty of making the final division of the real estate with the remainder of the residuary estate among those who are entitled to share in it does not create or imply a power to sell and convert it into money even at that time, and in no event is there ground for claiming that by implication a prior power of sale can be raised for the purpose of a subsequent distribution by reason of the power to distribute at the end of the life of the last life annuitant. The conversion, even if directed, might be prevented by a beneficiary, entitled t share in the division, electing to hold the land as it is. (2 Story's Eq. Jur., $4793.) It is also an answer to the position contended for that, if the absolute power of alienation was suspended under the statute of this State for a longer period than two lives in being, as is claimed by the counsel for the respondents, an implied or express power of sale given to executors, to be exercised at any time in their discretion, does not cure the invalidity of the limitation. With no particular provision referring to a conversion of the real estate into personalty, or to any fund including the same, it would be a forced construction to hold that any portion of any of the language employed in the twentysecond article of the will contains a power which sanctions and upholds the interpretation contended for. The most that can be claimed for the language employed in this respect is that the phraseology was somewhat imperfect and not selected with that exactitude and nicety which might have been adopted.

Opinion of the Court, per MILLER, J.

A claim is also made that the intention to convert the real property into personalty is shown by the language of clauses of the will earlier than the twenty-second section, and it is insisted that the testator intended to embrace remainders, after life estates and specific devises of land had failed, and that he pre-supposed that there would be a sale, although there is no specific direction to sell. Reference is made to the second, third, fourth, twelfth and eighteenth sections of the will specially, and stress is laid upon the use of the words "to be disposed of with the residue of his estate," as referring to some positive and affirmative act to be done with the specified lots and with the residue. We think that the phrases will not bear the interpretation urged, and are not inconsistent with the intention of the testator, as manifested by the twenty-second section and the whole tenor of his will, that no authority was intended to be conferred to convert the real estate into personalty and distribute what might be realized upon a sale as money merely. While some portions of the real estate might not be enjoyed by the grandchildren of the testator without a sale and distribution of the same, yet the fact that such property existed in a large estate, comprising various parcels of real property, does not conflict with the idea that the testator intended that the whole of said real estate which came within the provision of the twenty-second section of the will should be divided as therein directed. It is not unusual that large estates should embrace some species of property which alone could not be made available for the specific use of the residu ary devisees and this fact does not, in the absence of any express direction, warrant the conclusion that the testator intended, without any direct provision for that purpose, a conversion of the real estate into personalty.

So far our examination has been confined to the authorities cited by the appellants' counsel, which bear generally upon the subject of a conversion of real estate into personalty by implication, and we are now brought to the consideration of the question discussed, having in view the law of this State and the authorities therein which bear upon the subject. While it

Opinion of the Court, per MILLER, J.

should not be overlooked that the testator was domiciled in the State of Massachusetts, and his will executed there, it should also be borne in mind that, by his will, he devised his real estate as real estate situated in the State of New York. He made no direction that it should be converted into personalty and the avails arising from the sale thereof transmitted for division under the will to the State of Massachusetts. No express provision being made in the will for a conversion of the realty into personalty, every intendment is antagonistic to such an intention. If such had been the intention, it is to be presumed that apt and appropriate language would have been used to convey it, commanding and directing that this should be done. It would not have been left to be inferred by the use of ambiguous terms, or doubtful phraseology, but the will would have contained positive provisions, indicating the testator's intention. In White v. Howard (46 N. Y. 144, 162) it was laid down by GROVER, J., that "to constitute a conversion of real estate into personal, in the absence of an actual sale, it must be made the duty of, and obligatory upon, the trustees to sell it in any event. Such conversion rests upon the principle that equity considers that as done which ought to have been done." In that case the testator was a resident of the State of Connecticut, and, by his will, authorized the sale of his real estate in Connecticut, and the investment of the proceeds of the same in bonds and stocks and real estate located in the New England States or in the State of New York. A trust was created of the rest and residue for certain purposes therein named, and it was held that the will gave the trustee no power to sell the real estate of which the testator died seized, situate in New York, but that the same was to be regarded as realty, and that the validity of the testamentary disposition thereof, and the rights of those claiming by descent, must be determined by the laws of this State.

It is held in some of the reported cases that a positive direction to convert is required in order to authorize the application of the doctrine of the equitable conversion of real estate into personalty. (Fowler v. Depau, 26 Barb. 224; Ilarris v.