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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 (g).
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.
(q) 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.
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 (z).
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,
compulsory land under
sale of lunatic's
In pursuing the complicated inquiry, of what shall be What is peraccounted personal estate, it may be advisable to consider sonal estate. the subject in the divisions employed by Godolphin and the author of the Office of an Executor, viz., first to divide the effects of the deceased into things actually in his possession, and things not so, usually called Choses in action ;--and to subdivide the first class into chattels real, and chattels personal.
CHAPTER THE FIRST.
OF THE INTEREST OF THE EXECUTOR OR ADMINISTRATOR
IN THE CHATTELS REAL OF THE DECEASED.
What are chattels real.
tation to a church.
The Executor's or Administrator's Right to Chattels Real,
THE general rule is, that chattels real shall go to the exe
cutor or administrator, and not to the heir. Chattels real are such as concern or savour of the realty (a); or, in other words, they are chattel interests issuing out of, or annexed to, real estates (b). Thus, while the military tenures subsisted, wardship in chivalry was accounted such an interest, and accrued to the executor or administrator, and not to the heir; because it was in respect of a tenure of land or other hereditament, and was for years, viz. during the minority, or till marriage had (c).
If one be seised in his natural capacity of an advowson in gross, or in fee appendant to a manor, and the church becomes void, the void turn is a chattel personal, like rent due, or any other fruit fallen; and if the patron dies before he presents, the avoidance does not go to the heir, but to the executor (d): And the heir in tail shall not have a pre
(a) Co. Lit. 118, b.
(c) Godolphin, Pt. 2, c. 13, s. 2.
inheritance) was a chattel real: Ibid.
(d) F. N. B. 33, P. The Queen and Archbishop of Canterbury's case, 4 Leo. 109. Wall, Dyer, 282, b.
Stephens v. Earl of Lin