tives of his ancestor. If he claims it from strangers, he is in all cases entitled. But when the heir claims it from the testator's personal representatives a distinction is taken. If there was at the death of the ancestor any prior outstanding interest in the fund existing in another person, or if the ancestor's wife or children have a life or other interest in it, the heir is entitled. But if the money was what is called "at home," that is, if the ancestor was absolutely entitled to it, having at once the right to demand it, and the duty to invest it in land, and the ancestor has preferred to keep it as money rather than to invest it in land, it is obvious that the heir can have no equity against his ancestor's legal personal representatives to have that laid out in land for his benefit which his ancestor chose to keep as money. The leading case on this question is that of Chichester v. Bickerstaff the facts and the principle of which are simple, though they have often been misunderstood. In that case A. by his marriage settlement agreed to pay £3000 to trustees within three years of his marriage, and that that sum should be invested in land to be settled on A. and his wife successively, with remainder to their issue, remainder to A.'s heirs. The wife died without issue, and then A. died within three years of the marriage. The money had not been paid By A.'s will he appointed B. his executor. C. was A.'s heir-at-law. C. claimed the money from B. But Lord Somers decided that he was not entitled, because upon the wife's death without issue, A. and his heirs were alone entitled under the settlement. The right and the obligation were united in the same person, A., and as he chose not to pay and invest the money in land, the heir of A. had no equity against his ancestor's choice. The law upon this question is summarized by Lord Eldon, in his judgment in the case of Wheldale v. Partridge,2 where it is said, "if an instrument is to be taken to impress a fund with real qualities immediately upon the execution, in the question between the heir and executor, the money being once clearly impressed with real uses, as land, and one of these uses being for the benefit of the heir, the impression will remain for his benefit, and to put an 12 Vernon, 295.

2

8 Ves. 235.

end to that impression it must be shown, either (1) that the money was in the possession of a person who had in himself both the heirs and the executors, or (2) he must do some act to denote a change of his intention as to the devolutions of the property upon either; and it is not correct to say the Court does not interpose between volunteers if they give to the executor that money which the instrument has given to the heir." Circumstances of demeanour in the person (even though slight) will be sufficient to show an intention to change the devolution.1

The Court does not convert for the Crown. Thus when the absolute owner of money directed to be invested in land dies intestate and without heirs, it does not escheat to the Crown as land for want of heirs.2

Money directed to be invested in land is subject to legacy duty, but not to succession duty.3

When money directed to be so invested is subject to the same trusts as an estate, it will generally be ordered by the Court, on good reason being shown, to be laid out in the erection of new buildings on the estate, but not in repairs or other permanent improvements of the estate.

There must be a positive direction to convert the land or money, else there is no conversion. If no more than an option to convert is given, the property must be taken and regarded as being of the kind in which it is found, and there is no conversion until the land has been actually turned into money, or the money into land. And the case is the same where a mere power is given to trustees to convert with the consent of some other person. But there is an exception to the general rule that conversion must be imperative where an option is given, as by a direction to lay out money in "land or other securities," but the trusts declared are limited in a way only applicable to real property, for such limitations raise a presumption that the Pulteney v. Darlington, 1 Drake v. Trefusis, L. R. 8 Bro. C. C. 223-per Lord Thurlow. Ch. App. 364. 2 Walker v. Denne, 2 Ves. jun. 170.

1

3 Re De Lancey, L. R. 5 Exch.

5

6

Van v. Barnett, 19 Ves. 102.

De Beauvoir v. De Beauvoir,

3 H. L. C. 524.

testator only intended an investment in "other securities" until a suitable estate for purchase could be found.

Sometimes property is directed to be converted "upon the request of certain persons," in which case very difficult questions may arise. But it seems that if the intention was to give these persons a discretion, then, whether the property has actually been converted or not, there will be no conversion in contemplation of law until that discretion has been exercised in favour of conversion. But it is otherwise if the words requiring conversion on request were merely inserted to enforce conversion upon request. Conversion takes place, where it is directed by deed, at the delivery of the deed; and where it is directed by will, at the testator's death, if the direction to convert was absolute. But this rule fails where another time is expressly pointed out, as at the death of A.; but it does not fail where a discretion as to the time of purchase or sale is given to trustees. An option whether there shall be any conversion at all may be given to trustees or others. In such a case, if there should be an actual conversion, it will have a retrospective operation for some purposes. Thus, in the famous case of Lawes v. Bennett,1 A. let land to B. on lease, with an option of purchase within seven years. After A.'s death, B. exercised the option. It was held that the purchase money must go to A.'s executor, and not to his residuary devisee. It would have been otherwise if the property had been devised by name to the devisee. But it is now settled that until the option is exercised the rents and profits go to the real representative of A., although the general rule is that the rents and profits of an estate directed to be sold go to the person entitled to the interest in the purchase money of the estate when sold.2

It sometimes happens that the donee or donees of the land or money directed to be converted desire to take it unconverted. If they are absolute owners they may do this; but if the parties desiring this have only a limited or defeasible interest there can be no reconversion. Therefore, it would appear that a remainderman cannot elect that there should be no conversion, 1 1 Cox, 167. 2 Miller v. Miller, L. R. 13 Eq. 263.

1

although he may by will or deed dispose of his interest, either as realty or as personalty. But with the consent of all the other persons interested a remainderman may elect. A tenant in tail may elect, but in order to bar remainders he must do so by a disentailing deed duly enrolled, as provided by the Fines and Recoveries Acts.1 An infant cannot elect, but the Court will elect for him, where the property is the subject of an action, and it is for his benefit to make the election. Nor can a lunatic elect. But a married woman may elect, as to property settled to her separate use, just as if she were unmarried, and as to other property by a deed acknowledged.2

Where property is directed to be converted, and is given to several persons, a distinction is to be observed. If it is land, one of them may not say that he prefers to take his share as land, for the sale of a part only of the estate would prejudice the price. But if it is money, any one of the tenants in common may elect to take his share in money, for the residue of the money can be as well invested in land as the whole can be.

Election may be made either by express declaration or by conduct showing an intention to elect, and the express declaration may be made by parol.

There is more difficulty in saying what conduct sufficiently shows an intention to elect, but a devise of "all my land at A.," which had been directed to be converted, would be sufficient to show an intention to take it as land, and a bequest of a sum described as money agreed to be laid out in land clearly shows an intention to take it as money.3 So, if an absolute owner of land to be sold keeps it unsold for a long time, he will be presumed to have elected to take it as land, but two years' delay has been held too short a time to presume an election. where the owner of such land did not sell it, but granted leases, reserving rent to himself, his heirs and assigns, it was held a

1 3 & 4 Will. IV. c. 74, s. 71. 2 Ibid. May v. Roper, 4 Sim. 360.

3 Pulteney v. Darlington, 1

And

sufficient evidence of intention to keep the land as land.1 On the other hand, the receipt for a long time of the interest of money to be laid out in land does not prove an intention that there shall be no investment of it in land. Secus, where the cestui que trust obtains the corpus from the trustees.2 But in every case it must be remembered that in this regard it matters not that the trustees have neglected their duty. Equity considers what ought to be done as done, and in the eye of Equity, conversion is wholly independent of an actual conversion by trustees who ought to have converted.

Conversion is often effected by the Court or trustees independently of a will, especially in the cases of lunatics and infants. In these cases the Court regards only the interest of the lunatic or infant, but it does not convert lightly, and only in pursuance of such interest. When conversion has been so effected, the representatives of the lunatic or infant take the property according to the state in which it actually is, and they have no equity to call for reconversion.

The better opinion seems to be that when realty has been converted by the Court or trustees for a particular purpose, which does not exhaust the whole proceeds of the sale, the surplus is to be considered as personalty. And this has recently been followed in a case where the order for sale was before, but the sale itself was after the death of the person whose realty was sold. It is otherwise where the decree provides that any surplus shall be reconverted or anyone has an equity for reconversion.

As a rule, where land is taken compulsorily under Act of Parliament, and the purchase money paid into Court, the purchase money goes to the heir of the owner, unless there is evidence of the owner's election to treat it as personalty.

When property is directed to be converted for purposes which fail, the property, if personalty directed to be converted, goes to

1 Crabtree v. Bramble, 3 Atk.

680.

Pulteney v. Darlington, 1 Bro. C. C. 235.

3 Flanagan v. Flanagan, cited

in Ackroyd v. Smithson, 1 Bro. C. C. 503; Stud v. Price, L. R. 18 Eq. 192.

Arnold v. Dixon, L. R. 19

Eq. 113.