debts should be paid only out of the prop. erty which passes to the executor. Cook v. Dawson, 29 Beav. (Eng.) 126, 127; s. c., 3 De G. F. & J. 127.

When the estate is devised to another charged with the payment of debts, the doctrine of an implied power of sale in the executor has no application, for the obvious intent of the testator is, that the money shall be raised by a sale by the devisee, and he only can make title. Colyer 7. Finch, 5 H. L. Cas. (Eng.) 905. See also Hodkinson v. Quinn, 1 Johns. & H. (Eng.) 303.

These principles have been embodied in the 22 & 23 Vict. c. 35, sects. 14, 16, which confer the power to sell upon executors where the testator has not charged his real estate with the payment of debts or legacies, and has not devised the hereditaments so charged to trustees.

Where there are several co-executors, the power may be exercised by the survivor or survivors; and where the claim remains unbroken, and the executor of an executor represents the original testator, it will pass to the executor's executor. Wms. Exrs. (7th Eng. ed.) 655; Sugd. on Pow. (6th ed.) 138; Forbes v Peacock, 11 M. & W. (Eng.) 630; Magruder v. Peter, 11 Gill & J. (Md.) 217; Tainter v. Clark, 13 Met. (Mass.) 220, 225-228; Anderson v. Turner, 3 A. K. Marsh. (Ky.) 131; Jenkins 7. Storiffer, 3 Yeates (Pa.), 163; Houck v. Houck, 5 Pa. St. 273.

It would seem that while a purely naked power must be executed by all the executors named in the will, and, if one of them dies, does not survive to the others, and although the power per se is merely a naked power, yet if in other parts of the will there are trusts and duties imposed upon the executors, which require a sale to be made in order to effectuate the intent of the testator, the power survives. Franklin v. Osgood, 14 Johns. (N. Y.) 527. See Jackson v. Given, 16 Johns. (N. Y.) 167; Jackson 2. Burtis, 4 Johns. (N. Y.) 391.

1. Fletcher v. Ashburner, 1 Bro. C. C. (Eng.) 497; I L. C. Eq. (4th Am. ed)1118; 2 Powell, Dev. (Jarman's ed.) 61; 1 Jarman on Wills (3d Eng. ed ), 675 et seq.

When it is the intention of the testator that his real estate shall be converted into a pecuniary fund, to be held by trustees for purposes indicated by the will, it is deemed to be personalty from the time of the testa

tor's death; nor is the change prevented by the death of the person entitled to the proceeds before the execution of the power. Gourley v. Campbell, 13 S. C. (N. Y.) 218; Bramhall v. Ferris, 14 Ñ. Y. 41, 46; White . Howard, 46 N. Y. 144; Clay v. Hart, 7 Dana (Ky.), 1; Evans . Kingsberry, 2 Rand. (Va.) 120; Brearley v.. Brearley, I Stockt. (N. J.) 21; Taylor ? Benham, 5 How. (U. S.) 233. See Anewalt's App. 12 Pa. St. 414; Holland v. Cruft, 3 Gray (Mass.), 162, 180.

Where the person to whom the proceeds of the sale are bequeathed survives the testator, but dies before the sale, the property devolves upon his personal representative. Elliott z. Fisher, 12 Sim. (Eng.) 505; 1 Jarman (Eng.), 550. See In re Delancey, L. R. 4 Ex. (Eng) 345

But if the testator merely directs land to be sold, and the proceeds to be invested in other lands, such proceeds are to be regarded as land in the settlement of the estate, although they have not been actually re-invested. Jarman on Wills (3d Eng. ed), 551; In re Pedder's Settlement, 5 De G. M. & G. 890; Pearson v. Lane, 17 Ves. (Eng.) 101; Haggard v. Rout, 6 B. Mon. (Ky.) 247.

Ás to what does or does not amount to a direction to convert, see Brickenden v. Williams, L. R. 7 Eq. Cas. 310; In re Ibbitson's Est. L. R. 7 Eq. Cas. 226; Greenway v. Greenway, 2 De G. & J. (Eng.) 128; Lucas v. Brandreth, 28 Beav. (Eng) 273; Griesbach v. Freemantle, 17 Beav. (Eng.) 314; In re Taylor's Settlement, 9 Hare (Eng.), 596; De Beauvoir v. De Beauvoir, 3 H. L. Cas. 524; Cormick v. Pearce, 7 Hare (Eng.), 477; Ward v. Arch, 15 Sim. (Eng.) 389; Polley v. Seymour, 2 Y. & Coll. Ex. (Eng.) 709; Grieveson v. Kirsopp, 2 Keen (Eng.), 653; Elliott v. Fisher, 12 Sim. (Eng.) 515; Simpson v. Ashworth, 6 Beav. (Eng.) 412. See also Sugden's Law of Property, 460; 1 Jarman, Wilfs, 561-564. For a full discussion of the doctrine of conversion, see also Wms. Exrs. (7th Eng. ed.) 658 et seq., and Perkins' notes, "Equitable Conversion," 5th Am. & Eng. Enc. of Law; Notes to Fletcher . Ashburner, I L. Cas. Eq. (4th Am. ed.) 1118.

In conclusion, it should be observed 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.

Wms. Exrs. (7th Eng. ed.) 658; AttorneyGen. v. Brunning, 8 H. L. Cas. (Eng.) 243; In Matter of Will of Fox, 52 N. Y. 530, 537. But see Hood v. Hood, 85 N. Y. 561. As to distinction between legal and equitable assets, see "Debts of Decedents."

When a testator gives real and personal estate to his executor in trust to sell, and invest the proceeds for the purposes of the trusts specified, under the doctrine of equitable conversion, the real estate is to be considered as personalty, and the executor is bound to account before the surrogate for the proceeds arising from such sales as well as for the rents and profits. Hood v. Hood, 85 N. Y. 561.

Land Purchased with Partnership Funds. - Real estate purchased with partnership funds for partnership purposes as between the real and personal representatives of a deceased partner, has the quality of personal property. Phillips v. Phillips, 1 My. & K. (Eng.) 649; Brown v. Brown, 3 My. & K. (Eng.) 443; Darby v. Darby, 3 Drew. (Eng.) 495 See also Piatt v. Oliver, 3 McLean (U. S.), 27; Lang v. Waring, 25 Ala. 625; Sigourney . Munn, 7 Conn. 11; Nicoll. Ogden, 29 Ill. 323; Matlock v. Matlock, 5 Ind. 403; Lane v. Tyler, 49 Me. 252; Buffum 2. Buffum, 49 Me. 108; Cilley 7. Huse, 40 N. H. 358; Benson v. Ela, 35 N. H. 402; Jarvis v. Brooks, 29 N. H. 66; Hill v. Beach, 12 N. J. Eq. 31; Smith v. Tarlton, 2 Barb. Ch. (N. Y.) 336; Delmonico 7. Guillaume, 2 Sandf. Ch. (N. Y.) 366; Abbott's App. 50 Pa. St. 234; Winslow v. Chiffelle, 1 Harp. (S. C.) Ch. 25; Fowler v. Bailley, 14 Wis. 125; Dyer v. Clark, 5 Met. (Mass.) 562; Howard v. Priest, 5 Met. (Mass.) 582, 585; Deveney v. Mahoney, 8 C. E. Green. 247; Bank of England's Case, 3 De G. F. & J. (Am. ed.) 645, 658, 659, and cases in notes; Parson's Partn. (1st ed.) 363 et seq. 373, 374; Collyer, Partn. (5th Am. ed.) § 135 et seq. Compare Rowley v. Adams, 7 Beav. (Eng.) 548; Randall v. Randall, 7 Sim. (Eng.) 271; Cookson v. Cookson, 8 Sim. (Eng.) 529; Houghton v. Houghton, 11 Sim. (Eng.) 491. See also "Partnership." Am. & Eng. Enc. of Law.

Land purchased with Trust Funds. Land purchased by a trustee, guardian, or committee of a lunatic, with trust funds, on the death of the ward, cestui que trust, or lunatic, is taken as personal estate, and will not go to his heir. Gilson v. Scudamore, 1 Dick. (Eng) 45; Lord Winchelsea v. Norcliffe, 1 Vern. (Eng.) 435; s. c., 2 Freem. (Eng.) 95; Witter v. Witter, 3 P. Wms. (Eng) 99; Awdley v. Awdley, 2 Vern. (Eng.) 192; Lord Plymouth's Case, 2 Freem. (Eng.) 114. See also Lloyd z.

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Hart, 2 Pa. St. 473; Oxenden v. Lord Crompton, 2 Ves. Jr. (Eng) 69; In re Leeming, 3 De G. F. & J. (Eng.) 43.

As to length of time such equitable conversion is to continue, see Grider v. M'Clay, 11 Ser. & R. (Pa.) 224; Biggert v. Biggert, 7 W. (Pa.) 563; Dyer v. Cornell, 4 Pa. St. 359; Pennell's App. 20 Pa. St. 515; Bogert v. Furman, 10 Paige (N. Y.), 496; Horton v. M'Coy, 47 N. Y. 21; Foreman v. Foreman, 7 Barb. (N. Y.) 215; Davidson v. De Freest, 3 Sandf. Ch. (N. Y.) 456; Wms. Exrs. (7th Eng. ed.) 658, note (h)..

The administrator of a deceased ward is not entitled to recover in an action against the administrator of the deceased guardian, moneys which came into the guardian's hands as proceeds of real estate belonging to the ward sold under a decree of court for partition. The heirs-at-law of the deceased ward are necessary parties to the action. State v. Robinson, 78 N. Car. 222.

The character of property, whether real or personal, so far as administrators are concerned, is that which it bears at the death of their intestate, and does not change by subsequent conversion. Hamer v. Bethea, 11 S. C. 416.

1. Wms. Exrs. (7th Eng. ed.) 817; Crawford v. Ginn, 35 Iowa, 543; Flemming v. Chunn, 4 Jones, Eq. 422; Sparhawk v. Allen, 25 N. H. 261; Forteau v. Lepage, 6 Iowa, 123; Haslage v. Krugh, 25 Pa. St. 97; Kohler v Knapp, 1 Bradf. Sur. (N. Y.) 241; Fay v. Holloran, 35 Barb. (N. Y.) 295; Stinson v. Stinson, 38 Me. 593; Mills v. Merryman, 49 Me. 65; Gibson v. Farley, 16 Mass. 280; Sohier v. Eldredge, 103 Mass. 345, 351; King v. Anderson, 20 Ind. 385; Foltz v. Prouse, 17 Ill. 487; Terry v. Bale, 1 Demarest (N. Y.), 452. See also Co. Litt. 47 a; Drake v. Munday, Cro. Car. (Eng.) 207. Compare Lord Hatherton v. Bradburne, 13 Sim. (Eng.) 599; Wadsworth v. Allcott, 6 N. Y. 64; Cobel. v. Cobel, 8 Pa. St. 343.

"The heir takes the estate according to the well-known rule of inheritance, at the time of the decease of the ancestor, subject only to be divested by a sale, pursu ant to law, conducted in the manner prescribed by statute. All the legal consequences of this relation are held to follow. The heir is the owner till he is divested; he has the exclusive possession and right of possession; he may take the rents and profits to his own use and without account.” Shaw, C. J., in Boynton v. Peterborough & Shirley R Co, 4 Cush. (Mass.) 467, 469. See Welles v. Cowles, 4 Conn 182; Upper Appomattox Co. v. Harding, II Gratt. (Va.) 1.

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The probate court does not necessarily have any jurisdiction over the rents. The administrator neither has the right against the consent of the heirs, nor is he required, to occupy the estate or collect the rents therefrom. He may receive the income of the real estate by the request of the heirs, or with their acquiescence. He would not be regarded as a trespasser in so doing, unless done in opposition to their interests, or in defiance of their wishes. It is often convenient, and sometimes of decided advantage, for him to do so: as where the heirs are minors without guardians; or are abroad, or unacquainted with the management of affairs; and where the administrator may be himself an heir, or have intimate business or family relations with the estate, and in other cases. In many cases, there is an understanding or agreement, that the administrator shall take the rents, and account for them as assets for the benefit of the estate, where such a course may save a sale of the real estate for debts, or where the heirs get the advantage of them in the general distribution. In such case the administrator would account in the probate court for such rents with the general assets according to such agreement, but not necessarily by force of any requirements of the statute. Such we believe to be a somewhat common practice. Peters, J., in Kimball v. Sumner, 62 Me. 305, 310. See also Stearns v. Stearns, I Pick. (Mass.) 157; Shaw, C. J., in Wilson v. Shearer, 9 Met. (Mass.) 507; Newcomb v. Stebbins, 9 Met. (Mass) 540; Palmer v. Palmer, 13 Gray (Mass.), 328; Gibson v. Farley, 16 Mass. 280; Almy v. Crapo, 100 Mass. 218, 221; Taylor, Landl. & Ten § 390; Griswold v. Chandler, 5 N. H. 492; Jones's Appeal, 3 Grant (Pa.), 250; Conger v. Atwood, 28 Ohio St. 134.

Payment of such rents to the administrator is a mispayment, and will be no discharge as against the heir. Haslage v. Krugh, 25 Pa. St. 97. See Kimball v. Sumner, 62 Me. 305, 309, 310; Palmer v. Palmer, 13 Gray (Mass.), 326, 328.

The fact that the estate is insolvent, or the land mortgaged, does not affect the right of the heirs to rent and profits, until the land is sold for the payment of debts or entry by mortgagee. Gibson v. Farley, 16 Mass. 283; Towle v. Swasey, 106 Mass. 100; Boynton v. Peterborough & Shirley R. Co., 4 Cush. (Mass.) 467, 469; Lobdell v. Hayes, 12 Gray (Mass.), 236; Palmer v. Palmer, 13 Gray (Mass.), 326; Stearns v.

Stearns, 1 Pick. (Mass.) 157; Newcomb 7. Stebbins, 9 Met. (Mass.) 540; Alden v. Stebbins, 99 Mass. 616, 617; Kimball v. Sumner, 62 Me. 305; Stinson v. Stinson, 38 Me. 593; Schwartz's Est. 14 Pa. St. 42.

As to effect of insolvency in New Hamp shire, see Bergin v. McFarland, 26 N. H. 533; Lucy v. Lucy, 55 N. H. 9, 10. See also ante, 1, n.

An administrator or executor who collects the rents and profits of the real estate of the decedent, holds them for the heirs, and not for the creditors; and his account concerning them is not to be settled in the probate court. Griswold v. Chandler, 5 N. H. 492; Conger v. Atwood, 28 Ohio St. 134; M'Coy v. Scott, 2 Rawle (Pa.), 222; Terry v. Bale, 1 Demarest (N. Y.), 452.

If the personal representative is himself the heir, he holds them for his own use, and not as assets. Schwartz's Estate, 14 Pa. St. 42.

But in Missouri an executor or administrator may become liable on his bond for the rents and profits of real estate of which he has taken charge, and also for a failure to pay the taxes and make necessary repairs. Lewis v. Carson, 16 Mo. App. 342. See also Eppinger v. Canepa, 20 Fla. 262.

Where executors having a mere power in trust to sell lands, collected the rents, under the impression that they were entitled to receive them, as executors they were held accountable for them to the heirs. Campbell v. Johnson, 1 Sandf. Ch. (N. Y.) 148.

But where a will authorizes and empowers executors to prevent the sale of real estate for a specified time, -except for the payment of debts, and then only so much as may be necessary for that purpose, the executors are trustees of the realty, first for the payment of debts, and then for the discharge of the legacies, and should make such disposition of the rents, issues, and profits, as the will directs. Jones, App. 3 Grant (Pa.), 250.

Money received by an administrator by a sale of his intestate's lands under an agreement with the heirs that the adminis trator might make the sale, is assets in his hands. Stiver v. Stiver, 8 Ohio, 217. 1. Co. Litt. 47 a.

Whether the rent determines or goes to the heir, when not mentioned in the limi tation, does not appear to be settled. Sacheverell v. Frogatt, 2 Saund. (Eng.)