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Again, since equity looks upon things agreed to be done, land contracted
to be sold : 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 (?), or surrender (m), or even before the time agreed Keen, 653. Biggs v. Andrews, 5 election: (See 1 Roper on Leg. 473, Sim. 424. Simpson v. Ashworth, 3rd edit. Matson v. Swift, 8 Beav. 6 Beav. 412. Matson o. Swift, 8 375, per Lord Langdale, M. R. :) Beav. 368, 374, 375, 376, Elliott But they must be unequivocal : v. Fisher, 12 Sim. 505. Tily v. Stead v. Newdigate, 2 Meriv. 531. Smith, 1 Coll. 434. Wrightson v. Biggs v. Andrews, 5 Sim. 424. See Macaulay, 4 Hare, 487. Polley v. also Harcourt v. Seymour, 2 Sim. Seymour, 2 Y. & Coll. Exch, 709. N. S. 12. Griesbach v. Fremantle, Flint o. Warren, 14 Sim, 554. 17 Beay. 314. Gillies v. LongBurrell v. Baskerfield, 11 Beav. 525. lands, 4 De G. & Sm. 372. ChangWard v. Arch, 15 Sim. 389. Griffith ing the security of the money to be v. Ricketts, 7 Hare, 299. Mower laid out in land will effectuate the v. Orr, 7 Hare, 475. Cornick v. purpose : Lingen v. Sowray, 1 P. Pearce, 7 Hare, 477. De Beauvoir Wms. 172; or bequeathing it as v. De Beauvoir, 3 H. of L. 524. personalty ; Triquet v. Thornton, Shallcross v. Wright, 12 Beav. 505. 13 Ves. 345; or making a lease of Hardey v. Hawkshaw, 12 Beav. the estate directed to be sold : Crab552. Griesbach v. Fremantle, 17 tree v. Bramble, 3 Atk. 680. See Beav, 314. In re Taylor's settle- Cookson v. Reay, 5 Beav. 22. See ment, 9 Hare, 596. See also Sug- also Cookson v. Cookson, 12 C1, & den's Law of Property, 460, and Fin. 121. Preserving the property the cases as to Legacy Duty col- in its actual state may be sufficient: lected post, Pt. III. B. v. Ch. II. Dixon v. Gayfere, 17 Beav, 433. There is no equity for the Crown to But the mere circumstance of the call for a conversion of real pro- fund remaining unconverted in the perty in order that it may take the hands of the person entitled to it produce of it: Taylor v. Haygarth, at all events, is not, unaccompanied 14 Sim. 8. Henchman v. Atty. by length of time, evidence of his Gen., 3 M. & K. 485. It should intention to alter its new character: be further observed, that though a Kirkman v. Miles, 13 Ves. 338. See new character may, by this doc- also Griffith v.Ricketts, 7 Hare, 299, trine of equitable conversion, have (i) Atcherley v. Vernon, 10 Mod. been impressed upon the property, 518. Davie v. Beardsham, 1 Chan. yet it is in the power of any per- Cas. 39. Sugden's Vendors, &c., son (not personally incompetent) Ch. 4, s. 1. who is entitled to it absolutely, to (k) Green v. Smith, 1 Atk. 572. elect to take it in its actual state, Pollexfen v. Moore, 3 Atk. 272. Slight circumstances, and even (1) Paul v. Wilkins, Toth. 106. parol declarations of such an in- (m) Barker v. Hill, 2 Chanc. tention, will be sufficient for this Rep. 218.
money coveDanted 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 (0): 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 See also Moor v. Raisbeck, 12 Sim. which accrue between the vendor's 123. The law is the same where the death and the time for completing sale was by contract under the comthe contract belong to the vendor's pulsory powers of a Railway Comheir and not to his executor: Lums- pany: In re The Manchester and den v. Fraser, 12 Sim. 263. See also Southport Railway, 19 Beav. 365. Shadforth v. Temple, 10 Sim. 184. See also Richards o. Attorney-Gene
(0) Sikes v. Lister, 5 Vin. Abr. ral of Jamaioa, 6 Moo.P.C.381. On 541, pl, 28. Baden v. Earl of Pem- the general question whether the broke, 2 Vern. 213. Bubb's case, proceeds of compulsory sales, under 2 Freem. 38. Smith v. Hibbert, 2 Acts of Parliament, are to be conDick. 712. Foley v. Percival, 4 sidered real or personal estate, see Bro. C. C. 429, Sugden, ubi supra. In re Horner, 5 De G. & Sm.483. Eaton v. Sanxter, 6 Sim. 517. In re Taylor, 9 Hare, 596. In
(P) Thompson v. Towne, 2 Vern. re Stewart, 1 Smale & G. 32, and 319. Sugden, ubi supra.
the cases cited post, p. 591. (9) Curre v. Bowyer, 5 Beav. 6, (1) Edwards v. Countess of Warnote (b).
wick, 2 P. Wms. 171. See Bar(r) The New Wills' Act. See ham v. Clarendon, 10 Hare, 126. Preface.
(u) 2 P. Wms. 171, (8) Farrer v. Winterton, 5 Beav.1.
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 conversion
“out and out" nature of his real estate, to all intents and purposes, so as to
by Will : 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 (6). But this doctrine has been qualified by modern decisions; and it is now fully
(2) 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,
(y) Johnson v. Woods, 2 Beav.
(z) As to this expression, see 10 Beav. 175; 12 Beav. 508.
(a) By Sir Wm. Grant, in Berry v. Usher, 11 Ves. 91.
(6) See infra, Pt. III. Bk. IIÍ. Ch. V. § II., and 1 Rop. Leg. 455, 3rd edition,
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 (f): 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). conversion for It is plain, therefore, that where the conversion of land particular pur. into money is directed by the testator for a particular fail :
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.
(f ) Robinson v. Governors of the London Hospital, 10 Hare, 19.
(9) 6 Hare, 154. 10 Hare, 27.
produce, as remains undisposed of, will result to the heir (h). mixed fund
from produce And it is further established, that where a testator directs of sale of real his real estate to be sold, and the mixed fund arising from estate and per
sonal estate. 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 (1). 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.
(1) 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
(1) Jarman on Wills, vol. i. p.