the consequences of that distinction, will be considered hereafter, with the subject of assets generally.

table conversion :

land considered as

ey as land:

It is, however, an established doctrine in courts of equity, that things shall be considered as actually done, which ought Doctrine of equito have been done: and it is with reference to this principle, that land is under some circumstances regarded as money, and money as land. It was laid down by Sir Thomas Sewell, M. R., in Fletcher v. Ashburner (7), "that nothing was better established than this principle, that money directed to money, and monbe employed in the purchase of land, and land directed to be sold and turned into money, are to be considered as that species of property into which they are directed to be converted; and this in whatever manner the direction is given; whether by Will, by way of contract, marriage articles, settlement or otherwise, and whether the money is actually deposited or only covenanted to be paid, whether the land is actually conveyed or only agreed to be conveyed. The owner of the fund, or the contracting parties, may make land money, or money land" (m). It follows, therefore, that every person *claiming property under an instrument directing its conversion must take it in the character which that instrument has impressed upon it; and its subsequent devolution and disposition will be governed by the rules applicable to that species of property (n).

+ See American note at end of this Book, p. *591.

() 1 Bro. C. C. 497.

(m) See Weldale v. Partridge, 5 Ves. 396, where Lord Alvanley remarks the accuracy of this statement of the doctrine. This doctrine does not extend to the interpretation of statutes imposing duties on personal estate: Re De Lancey, L. R., 4 Exch. 345, per Kelly, C. B.

(n) 2 Powell Dev. 61, Jarman's edition. See also Sugden's Law of Property, 460, and the cases as to legacy duty collected post, Pt. III. Bk. V. Ch. II. Where by a marriage settlement freehold property has had imposed upon it by reason of the doctrine of equitable conversion the character of personalty, a will made under a power contained in the settlement disposing of it is entitled to probate and the property

is liable to probate and legacy duty: In the Goods of Gunn, 9 P. D. 242. An absolute order for sale, made within the jurisdiction of the court in an administration action, operates as a conversion from the date of the order and before any sale takes place: Hyett v. Mekin, 25 C. D. 735. There is no equity for the crown to call for a conversion of real property in order that it may take the produce of it: Taylor v. Haygarth, 14 Sim. 8. Henchman v. Att.-Gen., 3 M. & K. 485. It should be further observed that though a new character may, by this doctrine of equitable conversion, have been impressed upon the property, yet it is in the power of any person (not personally incompetent) who is entitled to it absolutely, to elect to take it in its actual state: Mutlow v. Bigg, 1 C. D. 385. Re Gordon, 6 C. D. 531. Meek v. Devenish, Ibid. 566.

*Again, since equity looks upon things agreed to be done, as land contracted to 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 (0), and the purchaser as a trustee of the purchase money for the vendor (p). Hence, the death of the vendor or vendee before the conveyance (7), or surrender (r), or even before the time agreed upon for completing the contract, is in equity immaterial (s). If the vendor die before. the payment of the purchase money, it will go to his executors and form part of his assets (t): and even if a vendor reserve the purchase

money payable as he shall appoint by an instrument executed in a particular manner, and afterward exercise his power, the money will, as between his creditors and appointees, be assets (u). 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 (x). Again, if a man devises his real estate and afterward 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. 26, s. 23, and not to his devisee (y). So where after making a will devising a specific estate and bequeathing the personal residue to other persons, a testator entered into a contract, giving an option of purchase over part of the estate, which option was exercised after the death; it was held by Wood, V.-C., that the property was converted, from the date of the exercise of the option, and went to the residuary legatee (z).

money covenant

in land:

On the same principle, money covenanted to be laid out in land, will descend to the heir (a). Nor will it make any difference that the covenant is a voluntary one: There- ed to be laid out fore, 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. But where a person covenants to lay out money in land, and afterward himself becomes solely entitled to it, so that the obligation to lay out, and the right to call for the money, center 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

(y) Farrer v. Winterton, 5 Beav. 1. See also Moor v. Raisbeck, 12 Sim. 123. The law is the same where the sale was by contract under the compulsory powers of a railway company : Re Manchester and Southport Railway, 19 Beav. 365. See also Richards v. Attorney-General of Jamaica, 6 Moo. P. C. 381. On the general question whether the proceeds of compulsory sales, under Acts of Parliament, are to be considered real or personal estate, see In re Horner,

5 De G. & Sm. 483. In re Taylor, 9 Hare, 596. Re Stewart, 1 Smale & G. 32; Frewen v. Frewen, L. R. 10 Ch. 610, and the cases cited post, p. *590.

(2) Weeding v. Weeding, 1 Johns. & H. 424.

(a) Edwards v. Countess of Warwick, 2 P. Wms. 171. The proceeds of realty sold under the Settled Estates Acts, and not yet converted into realty, have not become personal property in respect of which letters of administration can be granted, such property being realty converted into personaty to be again changed into realty: In the Goods of Lloyd, 9 P. D. 65.

of money in the purchase of lands 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 (b).

So a testator has the power, by his will, to change the nature of conversion "out his real estate, to all intents and purposes, so as to preand out" by will: clude all questions between his real and personal representatives after his death (c): This has been sometimes described as "a conversion out and out" (d): 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 (e), 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 (f). But this doctrine has been qualified by modern decisions; and it is now fully 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 favor: 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 (g). There

(b) Chichester v. Bickerstaff, 2 Vern. 295. This decision was questioned by Lord Talbot in Lechmere v. Lechmere, Cas. temp. Talb. 90, and by Sir J. 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. edit. See 2 Powell, Dev. 73, Jarman's edition.

(c) Johnson v. Woods, 2 Beav. 409, 413, by Lord Langdale.

(d) As to this expression, see 10 Beav. 175; 12 Beav. 508.

(e) By Sir Wm. Grant, in Berry v. Usher, 11 Ves. 91.

(f) See infra, Pt. III. Bk. III. Ch. V. § II., and 1 Rop. Leg. 455, 3rd edition.

(g) Fitch v. Weber, 6 Hare, 145, 149. A different view must be taken where the question arises on a deed which has altered the character of the property

fore, 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 (h): 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 (), or where the direction itself is, that the proceeds shall he considered, "to all intents and purposes," as part of the personal estate (k): 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 (1).

conversion

for

It is plain, therefore, that where the conversion of land into money is directed by the testator for a particular purpose, which fails, (as in the case of the death of a party particular poses which fail intended to be benefited,) so much of the estate, or of its *produce, as remains undisposed of, will result to the heir (m). If, on the other hand, there is a conversion of personal estate into real estate, and there is an ultimate limitation which fails to take effect, the interest which fails results for the benefit of the persons entitled to the personal estate, i. e., the persons who take under the Statute of Distributions as next of kin (n). 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 personal estate.

before the death of the author of the deed Griffith v. Ricketts, 7 Hare, 299. Biggs. v. Andrews, 5 Sim. 424.

(h) 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).

(i) Fitch v. Weber, 6 Hare, 145. (k) Robinson v. Governors of the London Hospital, 10 Hare, 19.

(1) Ibid. 27.

(m) Ex parte Pring, 4 Y. & Coll. Exch. 507.

mixed fund from

produce of sale of

real estate and

(n) Hereford v. Ravenhill, 1 Beav. 481; 5 Beav. 51. Cogan v. Stephens, 5 L. J. Ch. 17. If the heir-at-law becomes entitled to an undisposed-of interest in the shape of personal estate, and dies, there is no equitable reconversion as between his real and personal representatives, and consequently his executor takes it as part of his personal estate. On the other hand, if the next of kin having become entitled to freehold estate dies, there is no equity to change the freehold estate into anything else on his death. It will go to the devisee of the real estate or to his heir-at-law if he has not devised it, and