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conversion for

poses which

established, that in order to exclude the heir, it is not enough that the testator shows an intention that his real estate should become money after his death; it must also be apparent that he meant it to be treated as if it had been personal estate before his death: For if the property in question was real estate at his death, the onus is on the next of kin to show a devise of it in his favour: And though the Will may determine in what quality the property shall be taken by those on whom it may devolve, yet if it does not also determine who are the persons to take, the original right of the heir at law must prevail (c). Therefore, the testator's declaration, however explicit, that the estate shall be absolutely converted, e.g., a direction that it shall be sold and deemed part of his personal estate, will not exclude the heir; because such a direction does not, generally speaking, amount to a gift by implication to the next of kin (d): And the law is the same, even where the direction is accompanied by a declaration, that the proceeds of the land to be converted shall not, nor shall any part thereof, in any event lapse or result for the benefit of the heir (e), or where the direction itself is, that the proceeds shall be considered, “to all intents and purposes" as part of the personal estate (ƒ): except, perhaps, where there is no further disposition; in which case it might be inferred that such a direction was intended to operate as a gift to the next of kin (g).

It is plain, therefore, that where the conversion of land particular pur- into money is directed by the testator for a particular purpose, which fails, (as in the case of the death of a party intended to be benefitted,) so much of the estate, or of its


(c) 6 Hare, 149. A different view must be taken where the question arises on a deed which has altered the character of the property before the death of the author of the deed: Griffith v. Ricketts, 7 Hare, 299. Biggs v. Andrews, 5 Sim. 424.

(d) Johnson v. Woods, 2 Beav. 409. Flint v. Warren, 16 Sim. 124.

Fitch v. Weber, 6 Hare, 145. Bromley v. Wright, 7 Hare, 334. Shallcross v. Wright, 12 Beav. 505. Taylor v. Taylor, 3 De G. M. & G. 190, (overruling Phillips v. Phillips, 1 M. & K. 649.)

(e) 6 Hare, 145.

(ƒ) Robinson v. Governors of the London Hospital, 10 Hare, 19. (g) 6 Hare, 154. 10 Hare, 27.

from produce of sale of real

estate and per

sonal estate.

produce, as remains undisposed of, will result to the heir (h). mixed fund And it is further established, that where a testator directs his real estate to be sold, and the mixed fund arising from the produce of the real estate and the personal estate to be applied to certain specified purposes; if any part of the disposition fails, either by lapse or otherwise, then to the proportional extent in which the real estate would have contributed to that disposition, it is to be considered as failing for the benefit of the heir at law, and as so much real estate in that event undisposed of (i). A different point arises, where there is a general residuary bequest of personal estate, in the same Will in which there is a direction for the conversion of the real estate. In such a case it should seem, that if there is a declaration in the Will that the money to arise from the sale shall be deemed part of the testator's personal estate, the undisposed of residue of the proceeds will pass under the gift of the residue, but not, generally speaking, without such a declaration (j). As to specific sums given out of the proceeds, it has been a subject of controversy, whether the circumstance of the produce of the real estate being blended by the testator with the general personal estate in one residuary gift, constitutes a ground for excluding the heir from lapsed or void legacies by applying to the mixed fund the rule applicable to personalty (viz. that the residuary legatee takes what is not effectually disposed to other persons) (k). A very eminent writer (1) has expressed his opinion, that it is

(h) Ex parte Pring, 4 Y. & Coll. Exch. 507. And conversely, where a testator directs his personal estate to be converted into real estate for several purposes, some of which fail, the heir is not, after satisfying the purposes which can take effect, entitled to the personalty as being impressed with the character of realty: Hereford v. Ravenhill, 1 Beav. 481. 5 Beav. 51.

(i) Ackroyd v. Smithson, 1 Bro. C. C. 503. Johnson v. Woods, 2 Beav. 409. Hopkinson v. Ellis, 10

Beav. 169. Taylor v. Taylor, 3 De
G. M. & G. 190.

(j) See 1 Jarman on Wills, 531,
et seq., 2d edit.

(k) The principal modern cases on the subject are Amphlett v. Parke, Russ. & M. 221. Green v. Jackson, ibid. 238. Salt v. Chattaway, 3 Beav. 576. As to Wills made or republished since the New Wills' Act, 1 Vict. c. 261, see sect. 25 of that statute. Ante, Preface.

(1) Jarman on Wills, vol. i. p. 540-547, 2nd edition.

difficult to discover any solid reason why the blending of the two funds should produce this consequence: But he further observes that the state of the authorities is not such as to justify the hope of all litigation being at an end on this perplexing subject.

Whether the property so resulting to the heir shall be considered as land or money in his hands, is a question of some nicety. The principle seems to be, that where the purpose of the testator still requires a sale of the whole land, and there is only a partial disposition of the produce, the surplus belongs to the heir as money and not land, and will go to his personal representative; but where no purpose of the devisor demands, in the events that have happened, that the whole land shall be converted into money, there the heir shall take the resulting property as land, and it shall descend as such to his heir. Thus where a devisor directs his land to be sold, and the produce divided between A. and B., the obvious purpose of the testator is, that there shall be a sale for the convenience of division; and if A. dies in the lifetime of the devisor, and the heir stands in his place, the purpose of the testator still applies to the case; therefore the heir will take the share of A. as money and not as land: But if A. and B. both die in the lifetime of the testator, and the whole interest in the land descends to the heir, the purpose of the testator, that there shall be a sale for the convenience of division, has no application, and the heir will, therefore, take the whole interest as land (m). So where a testator devises his real estate in trust to be sold to pay debts and legacies, and dies intestate as to the excess, his heir will take it as land (n): In such a case also if any of the legacies lapse, they will result to the heir as land; for

(m) Smith v. Claxton, 4 Madd. 492, 493. Davenport v. Coltman, 12 Sim. 610, 613. See also, on this subject, Hewit v. Wright, 1 Bro. C. C. 86. Wright v. Wright, 16 Ves. 188. Dixon v. Dawson, 2 Sim. & Stu. 340. Jessopp v. Wat

son, 1 Myln. & K. 665, Hatfield v. Pryme, 2 Coll. 204. Burley v. Evelyn, 16 Sim. 290. In re Cooper's Trusts, 4 De G. M. & G. 757.

(n) By Sir W. Grant, in Wright v. Wright, 16 Ves. 191.

the purpose of the testator does not require a sale of so much of the real property (o).

It has been laid down that, in equity, all property, whether real or personal, whatever may be its nature, purchased with partnership capital for the purposes of the partnership trade, continues to be partnership capital, and to have as between the real and personal representative of a deceased partner, the quality of personal estate (p). Where, however, a new partner was taken into the firm, and the real property continued to be used for the partnership purposes, but a rent was paid for it, under the terms of the partnership, to the old partners by the new firm, it was held that, on the death of one of the old partners, the property was to be considered as part of his real estate (q).

Another example of land being considered as money, and vice versa, may be found in the cases where guardians or trustees alter the nature of the property committed to them. Thus the 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 (r). So where the trustees of an infant's estate having a considerable sum of money in their hands, out of the profits of his estate, laid it out in a purchase of lands lying near the estate, with the consent of his guardian, and by the conveyance to the trustees, it was declared that they stood seised in trust for the infant, in case, when he came of age, he should agree to it; the infant dying within age, the trustees were held accountable to the administrator of the infant for the sum laid out, and his heir was declared to have no title to the land (s). So where an executor in trust

(0) See 1 Rop. Leg. 471, 3rd edition.

(p) Phillips v. Phillips, 1 Myln. & K. 649. Broom v. Broom, 3 Myln. & K. 443. Morris v. Kearsley, 2 Y. & Coll. Exch. 139. Bligh v. Brent, ibid. 268. But see Randall v. Randall, 7 Sim. 271. Cookson v. Cook

son, 8 Sim. 529. Houghton v.
Houghton, 11 Sim. 491.

(9) Rowley v. Adams, 7 Beav.

(r) Gibson v. Scudamore, 1

Dick. 45.

(s) Lord Winchelsea v. Norcliffe, 1 Vern. 435. S. C. 2 Freem. 95.

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by committee of a lunatic:

16 & 17 Vict. c. 70.

for an infant of a lease for ninety-nine years, determinable on three lives, on the lord's refusal to renew but for lives absolutely, complied with his requisition, and changed the years into lives; on the infant's dying under twenty-one, this was held to be a trust for his administrator, and not for his heir (t).

Again, where the committee of a lunatic invested part of his personal estate in the purchase of lands in fee, it was held that this should be taken as personal estate, and at his death should not go to his heir-at-law (u). So where the grantee of the custody of a lunatic, with the rents and profits of the estate purchased lands, the lunatic dying, the question was between the heir and administrator, who should have the benefit of the purchase; and the Court was of opinion, that the administrator should have it, and not the heir; for if the money had not been laid out, it had been clear that the administrator should have had it; and if laying out of the money would alter the case, then it would be in the power of the grantee of the custody to prefer the heir or the administrator as he pleased (x). But it must be observed, that in the management of a lunatic's estate, it is his benefit, solely, which is considered: and, therefore, if it be clearly for his advantage, that the nature of one part of his estate should be altered for the improvement of the other, such alteration will be directed by the Court of Chancery (y); and when such alteration is made, there is no equity between the real and personal representatives, at the lunatic's death, to have the nature of the property restored (2).

By stat. 16 & 17 Vict. c. 70, s. 116, certain provisions are made for the sale or mortgage of the lunatic's property for debts, maintenance, and other purposes. And by sect. 119,

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