it was held, that the power was not given by implication to the executors; because they had nothing to do with the produce of the sale, nor any power of distribution with respect to it (a).

whether a mere charge of debts

on land gives

the executors

an implied

In this case the Vice-Chancellor said that the power to the executors to sell is "necessarily to be implied from the produce being to pass through their hands in the execution of their office, as in the payment of debts and legacies." power of sale: And accordingly before the case of Doe v. Hughes (b), the law had, it appears, been considered to be that the effect of a charge of the real estates with debts was to give to the executors an implied power of sale (c). But in that case the Barons of the Exchequer deliberately denied this proposition; and held that, where a testator, after charging all his real and personal estate with his debts, funeral and testamentary expenses, and a certain legacy, devised the rents and profits of all his messuages and lands, except his Bala houses, to his wife for life with remainder in fee to H., and also bequeathed to his wife the whole of his personal estate and appointed her sole executrix, the Bala houses descended to the heir, subject to a charge which could only be enforced in Equity; and that the executrix had no implied power to sell or mortgage them for the payment either of the debts, funeral or testamentary expenses, or legacy (d).

It is here necessary to observe, that a testator cannot

(a) See also Patton v. Randall, 1 Jac. & Walk. 189. 1 Sugd. on Pow. 138, 139, 6th edit. Allum v. Fryer, 3 Q. B. 442, 446. Accord. But the authority of Bentham v. Wiltshire was doubted by Shadwell, V. C., in Forbes v. Peacock, 11 Sim. 152, 12 Sim. 528: and his Honor said (12 Sim. 536), that he did not think Sir John Leach would have decided as he did in that case if he had seen the case of Ward v. Devon, which was decided by Sir

W. Grant (11 Sim. 160). See,
however, Haydon v. Wood, 8 Hare,
279, note (a), and Curtis v. Ful-
brook, Ibid. 278, (correcting the
report Ibid. 25.)

(b) 6 Exch. 223.

(c) See 17 Beav. 601, by Romilly,

M. R.

(d) See, however, the remarks made on this case and the authorities cited by Romilly, M. R., in Robinson v. Lowater, 17 Beav. 601. S. C. on appeal, 5 De G. M. & G. 272.

a testator can

not turn his

real estate into

legal personal

assets by directing it to be sold or other

wise.

Doctrine of

version :

alter the legal character of real property, by directing, either impliedly or expressly, that it shall be considered part of his personal estate. Accordingly, it may now be considered a settled rule, that where lands are devised to executors, to be sold for the payment of debts and legacies, the money arising from the sale is to be considered equitable and not legal assets (e). The distinction between these two kinds of assets, and the consequences of that distinction, will be considered hereafter, with the subject of assets generally.

It is, however, an established doctrine in Courts of Equity, equitable con- that things shall be considered as actually done, which ought to have been done and it is with reference to this principle, that land is under some circumstances regarded as money, and money as land. It was laid down by Sir Thomas land considered Sewell, M.R., in Fletcher v. Ashburner (f), "that nothing money as land: was better established than this principle, that money

as money, and

directed to be employed in the purchase of land, and land directed to be sold and turned 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, by way of contract, marriage articles, settlement or otherwise, and whether the money is actually deposited or only covenanted to be paid, whether the land is actually conveyed or only agreed to be conveyed. The owner of the fund, or the contracting parties, may make land money, or money land" (g). It follows, therefore, that every person claiming property under an instrument directing its conversion, must take it in the character which that instrument has impressed upon it; and its subsequent devolution and disposition will be governed by the rules applicable to that species of property (h).

(e) Clay v. Willis, 1 B. & C. 364.

2 D. & R. 539. Barker v. May, 9
B. & C. 489.

(f) 1 Bro. C. C. 497.

(g) See Weldale v. Partridge, 5 Ves. 396, where Lord Alvanley re

marks the accuracy of this statement of the doctrine.

(h) 2 Powell Dev. 61, Jarman's edition. As to what shall, or shall not, amount to a direction for conversion, see Grieveson v. Kirsopp, 2

Again, since equity looks upon things agreed to be done, land contracted as actually performed, it follows, that, when a real estate is contracted to be sold, the vendor is regarded in equity as a trustee for the purchaser of the estate sold (i), and the purchaser as a trustee of the purchase-money for the vendor (k). Hence, the death of the vendor or vendee before the conveyance (1), or surrender (m), or even before the time agreed

money covenanted to be laid out in land:

upon for completing the contract, is in equity immaterial (n). If the vendor die before the payment of the purchase-money, it will go to his executors and form part of his assets (o): and even if a vendor reserve the purchase-money, payable as he shall appoint by an instrument executed in a particular manner, and afterwards exercise his power, the money will, as between his creditors and appointees, be assets (p). So if the contract be valid at the death of the vendor, but the purchaser loses his right to a specific performance by subsequent laches, the estate belongs to the next of kin and not to the heir-at-law (q). Again, if a man devises his real estate and afterwards sells it, and the purchase is not completed until after his death, the purchase-money belongs to his personal representatives, notwithstanding the stat. 1 Vict. c. 26, s. 23 (r), and not to his devisee (8).

On the same principle, money covenanted to be laid out in land, will descend to the heir (t). Nor will it make any difference that the covenant is a voluntary one: Therefore, if a man, without any consideration, covenant to lay out money in a purchase of land to be settled on him and his heirs, a Court of Equity will compel the execution of such contract, though merely voluntary (u). But where a person covenants

(n) Sugden, ubi supra. The rents which accrue between the vendor's death and the time for completing the contract belong to the vendor's heir and not to his executor: Lumsden v. Fraser, 12 Sim. 263. See also Shadforth v. Temple, 10 Sim. 184.

(9) Sikes v. Lister, 5 Vin. Abr. 541, pl. 28. Baden v. Earl of Pembroke, 2 Vern. 213. Bubb's case, 2 Freem. 38. Smith v. Hibbert, 2 Dick. 712. Foley v. Percival, 4 Bro. C. C. 429. Sugden, ubi supra. Eaton v. Sanxter, 6 Sim. 517.

(p) Thompson v. Towne, 2 Vern. 319. Sugden, ubi supra.

(q) Curre v. Bowyer, 5 Beav. 6, note (b).

(r) The New Wills' Act. See Preface.

(8) Farrer v. Winterton, 5 Beav.1.

See also Moor v. Raisbeck, 12 Sim. 123. The law is the same where the sale was by contract under the compulsory powers of a Railway Company: In re The Manchester and Southport Railway, 19 Beav. 365. See also Richards v. Attorney-General of Jamaica, 6 Moo. P. C. 381. On the general question whether the proceeds of compulsory sales, under Acts of Parliament, are to be considered real or personal estate, see In re Horner, 5 De G. & Sm. 483. In re Taylor, 9 Hare, 596. In re Stewart, 1 Smale & G. 32, and the cases cited post, p. 591.

(t) Edwards v. Countess of Warwick, 2 P. Wms. 171. See Barham v. Clarendon, 10 Hare, 126. (u) 2 P. Wms. 171,

to lay out money in land, and afterwards himself becomes solely entitled to it, so that the obligation to lay out, and the right to call for the money, centre in the same person, the money, it should seem, is considered as discharged; as where a man, on his marriage, covenants to lay out a sum of money in the purchase of land, to be settled for the use of himself for life, remainder to his intended wife for life, remainder to the first and other sons of the marriage in tail, remainder to the daughters in tail, remainder to his own right heirs, and the husband does not lay out the money, and survives his wife, who dies without issue; it has been held that the money, though once bound by the articles, became free again. by the death of the wife without issue, and the consequent failure of the objects of the several limitations, and was therefore, at the death of the settlor, his personal estate (x). So a testator has the power, by his Will, to change the nature of his real estate, to all intents and purposes, so as to preclude all questions between his real and personal representatives after his death (y): This has been sometimes described as a conversion out and out" (z): And when it clearly appears to have been his intention thus to impress on it the character of personal estate to all intents and purposes, the mere appointment of an executor will be sufficient to carry that property to him (a), either for his own benefit, in cases where he is beneficially entitled to the personal estate; or as a trustee for the next of kin, in cases where he holds the personal estate on the like trust (b). But this doctrine has been qualified by modern decisions; and it is now fully

66

(z) Chichester v. Bickerstaff, 2 Vern. 295. This decision was questioned by Lord Talbot in Lechmere v. Lechmere, Cas. temp. Talb. 90, and by Sir Joseph Jekyll in Lechmere v. Earl of Carlisle, 3 P. Wms. 221; but confirmed by Lord Thurlow, in Pulteney v. Lord Darlington, 1 Bro. C. C. 238, and the determination of the House of Lords, in the same case, 7 Bro. P. C. 530.

Toml. ed. See 2 Powell Dev. 73,
Jarman's edition.

(y) Johnson v. Woods, 2 Beav.
409, 413, by Lord Langdale.

(z) As to this expression, see 10 Beav. 175; 12 Beav. 508.

(a) By Sir Wm. Grant, in Berry v. Usher, 11 Ves. 91.

(b) See infra, Pt. III. Bk. III. Ch. v. § II., and 1 Rop. Leg. 455, 3rd edition.