be intended sometimes to designate children by it; at others the widow and children, or all the kindred, or a single one, that may be entitled to a distributive share or the whole property, by original right or by representation, or even a person entitled to a share by assignment. I know I have heard a single child called "sole distributee," and also that one, who had purchased a share, "had become a distributee." So I had really supposed that there was no meaning attached to the word by itself, in the mind of any one, but that it varied in vulgar use with the context, and that, therefore, it was wholly inappropriate to describe a title to property in pleading and entries. In wills or contracts the courts would be obliged to receive it in some sense, and would endeavor to discover that which would subserve the intention in the particular case. If, perchance, it were to find its way into a statute, the judicial duty would be the same. But that would not render it proper to transfer it into judicial proceedings. For legislators, like testators, take the right to puzzle judges as much as they please, and often do not trouble themselves much in the selection of terms. The same latitude, however, is not to be claimed by pleaders and clerks. Pleadings and the entries of judgments and decrees. ought to be in the language of the law. For them there are precedents, settled long ago by the wise and the learned, and used from generation to generation by those who were and are as discreet and well informed as any among us can claim to be. *

PER CURIAM. Petition to be dismissed, unless the plaintiffs apply at the next term to have the cause remanded.11

14 The term "distributee" has the advantage of having only one meaning, whereas the phrase "next of kin" is used in two senses.

."It seems to me that by next of kin this statute meant distributees of the deceased intestate. * This phrase [next of kin] frequently occurs in wills; and while it is true that the courts interpret it very generally as meaning nearest blood relation, yet when from the context or other portions of the will it is apparent that the testator intended to include in the phrase all his distributees, the courts will so construe the phrase and include in it a widow or surviving husband, though to justify such a construction of a will it must be very apparent that the testator meant that it should have this comprehensive meaning. * The courts have, however, it seems to me, been less strict in confining the phrase next of kin to blood relations, when statutes were to be construed, and have frequently interpreted this phrase to include a husband or wife." Green, J., in Seabright v. Seabright, 28 W. Va. 412, 465, 466 (1886). See French v. French, 84 Iowa, 655, 51 N. W. 145, 15 L. R. A. 300 (1892); Steel v. Kurtz, 28 Ohio St. 191 (1876); Betsinger v. Chapman, 88 N. Y. 487 (1882). For a decision adhering in the construction of a will to the primary meaning of "next of kin," which “includes neither a widow nor a husband," see Matter of Devoe, 171 N. Y. 281, 63 N. E. 1102, 57 L. R. A. 536 (1902). O'Brien, J., dissented.

SECTION 5.-PARTIAL INTESTACY

In re WILLBOR.

(Supreme Court of Rhode Island, 1897. 20 R. I. 126, 37 Atl. 634, 51 L. R. A. 863, 78 Am. St. Rep. 842.)

MATTESON, C. J. This is a case stated for an opinion of the court, as follows: Three sisters, Charlotte Willbor, Martha T. Willbor, and Eliza Ann Willbor, late of Newport, deceased, all perished in the same calamity-the burning of their house in Newport. They left instruments in writing, purporting to be their last wills and testaments, which have been duly admitted to probate. By these wills each testatrix gave and devised all her real and personal estate to her two sisters, or to either of the survivors, and to their heirs and assigns forever, and then, having first directed that, after the decease of the last sister, the necessary debts should be paid, proceeds to give to her two nieces, Emily N. Willbor and Maria H. Willbor, $500 each, and to Thomas W. Smith $200. The legatee Emily N. Willbor died before the testatrices. The only heirs at law of the testatrices are Abbie R. Richards, Ann Elizabeth Clarke, Mary H. Adams, Sarah T. Bliven, and Maria H. Willbor.

Upon these facts, the questions propounded are: (1) What is the amount of the legacies to which Maria H. Willbor and Thomas W. Smith are respectively entitled under the wills? (2) What portion of the estate of the testatrices passed to their heirs at law? As all three of the testatrices lost their lives in the same disaster, and no fact or circumstance appears from which it can be inferred that either survived the others, the question of survivorship must be regarded as unascertainable, and hence the rights of succession to their estates are to be determined as if death occurred to all at the same moment. Underwood v. Wing, 19 Beav. 459, 4 De Gex, M. & G. 633; Wing v. Angrave, 8 H. L. Cas. 183; Wollaston v. Berkeley; 2 Ch. Div. 213; In re Wainwright, 1 Swab. & T. 257; Scrutton v. Pattillo, L. R. 19 Eq. 369; Coye v. Leach, 8 Metc. (Mass.) 371, 41 Am. Dec. 518; Johnson v. Merithew, 80 Me. 111, 13 Atl. 132, 6 Am. St. Rep. 162; Newell v. Nichols, 12 Hun, 604; Id., 75 N. Y. 78, 31 Am. Rep. 424; In re Hall, 9 Cent. Law J. 381; Russell v. Hallett, 23 Kan. 276; Estate of Ehle, 73 Wis. 445, 41 N. W. 627; 24 Am. & Eng. Enc. Law, 1027-1032.

If all three of the testatrices are to be regarded as having died at the same moment, it follows that the bequest and devise in each of

their wills to the two sisters, or either of the survivors, did not take effect, there being no interval of time, as between the deaths of the three, during which titles to property could vest; and the wills therefore stand as if they contained only the bequests to the legatees subsequently named, to wit, Maria H. Willbor and Thomas W. Smiththe other legatee, Emily N. Willbor, having deceased without issue before the deaths of the testatrices.

We are therefore of the opinion: (1) That, after the payment of the debts of each testatrix, Maria H. Willbor and Thomas W. Smith. are entitled to the legacies of $500 and $200 respectively bequeathed to them in each will, to be paid out of the personal estate of each testatrix, if the personal estate is sufficient, and, if insufficient that such legacies shall abate proportionately; (2) that the residue of the personal estate, if any, and the real estate, of each testatrix, if any, passes, as intestate estate, to her next of kin and heirs at law.1

SECTION 6.-EQUITABLE AND LEGAL DESCENDIBLE INTERESTS

CLAPP v. TOWER.

(Supreme Court of North Dakota, 1903. 11 N. D. 556, 93 N. W. 862.) YOUNG, J. This is an action to quiet title to a section of land situated in Cass county, which was conveyed to the plaintiff by the executors of the last will and testament of Charlemange Tower, deceased. The complaint alleges that the plaintiff is the owner of said real estate, and that the defendants claim an interest therein adverse to the plaintiff, and prays that they be required to set forth their claims, to the end that their validity may be determined, and that title be quieted in the plaintiff.

Defendants, in their answer, allege that they are the next of kin and all of the heirs at law of said Charlemange Tower, deceased, and all the surviving legatees under his will; that said Charlemange Tower died in, and a resident of, the city of Philadelphia, Pa., and that his will was probated there; that the land in question was sold by said

15 On the presumption of survivorship among those who perish in a common disaster, see 51 L. R. A. 863, note; 104 Am. St. Rep. 211, note. On partial intestacy as to personalty, see Dresel v. King, post, p. 720.

deceased to one Hadley upon a contract which provided for the execution and delivery of a deed to him upon the making of certain deferred payments specified in said contract; that subsequent to the death of Charlemange Tower the executors of his will foreclosed said contract by reason of the default of said Hadley in making payments according to its terms, and that said land became a part of the estate of said deceased; that thereafter the executors, acting upon the theory that said land was subject to the principle and rule of equitable conversion, and was for the purposes of administration to be treated as personal property, sold and conveyed the same to the plaintiff, who has ever since been in possession of the same, claiming the ownership and possession thereof by virtue of said deed from said executors; that the defendants are the owners of said real estate by virtue of their heirship, and ask that the title be quieted in them.

The plaintiff demurred to the answer upon the ground that it does not state facts sufficient to constitute a defense or counterclaim. The trial court sustained the demurrer, and the defendants appeal from the order sustaining the same.

The will of Charlemange Tower was before this court in the case of Penfield v. Tower, 1 N. D. 216, 46 N. W. 413. This court held that, so far as its provisions related to real estate situated in this state, it was inoperative and void, and that the real estate of said deceased in this state must be distributed according to the law of succession of this state, and that the personal property should be distributed according to the terms of the will. The only question involved upon the issue raised by the demurrer is whether the land in question should, under the facts pleaded in the answer, be treated as real estate or as personal property. If, for the purposes of administration, it retains the character of real estate, the will not being operative, it descended directly to the heirs, the defendants in this action. This is conceded. If, on the other hand, it is to be considered as personal property, it then went to the executors for the purposes of distribution, and they had full right and authority to sell and convey the same in the manner and form pursued, and to account for the proceeds to the orphans' court of the state of Pennsylvania, from which they received their appointment.

It is very properly conceded by both parties that under the rule and doctrine of equitable conversion land may be treated as money and money as land, whenever in equity, it is proper to invoke and apply the principle of that doctrine. "Equitable conversion is defined as a constructive alteration in the nature of property by which, in equity, real estate is regarded as personalty or personal estate as realty." 7 Amer. & Eng. Enc. of Law (2d Ed.) p. 464. And the doctrine has its origin in the maxim of equity that that is regarded as done which should be done. Penfield v. Tower, supra.

There is no room for doubt that upon the facts pleaded in the de

fendants' answer the rule of equitable conversion is applicable, and that the execution and delivery of the contract of sale of the real estate in question by Charlemange Tower during his lifetime—and the same was valid and enforceable at the time of his death-worked a conversion of the land into personalty. His interest, after the execution of the contract and at the time of his death, was the money contracted to be paid by the purchaser, and the purchaser's interest was the land contracted to be conveyed. In such cases, says Pomeroy, in his work on Equity Jurisprudence (section 105), "the vendor still holds the legal title, but only as a trustee, and he in turn acquires an equitable ownership of the purchase money. His property, as viewed by equity, is no longer real estate, in the land, but personal estate, in the price; and, if he dies before payment, it goes to his administrators, and not to his heirs. In short, equity regards the contracting parties as having changed positions, and the original estate of each as having been 'converted'-that of the vendee from personal into real property, and that of the vendor from real into personal property."

The doctrine is laid down in Williams et al. v. Haddock, 145 N. Y. 144, 39 N. E. 825, as follows: "Courts of equity regard that as done which ought to be done. They look at the substance of things, and not at the mere form of agreements, to which they give the precise effect which the parties intended. It is presumed that the vendor, in agreeing to sell his land, intends that his property shall assume the character of the property in which it is to be converted, and it cannot be denied that it is competent for the owner of land thus to make such land into money at his sole will and pleasure. If the vendor die prior to the completion of the bargain, provided there has been no default, the heir of the vendor may be compelled to convey, and the proceeds of the land will go to the executors as personal property."

The rule is uniform, we think, that, where a valid and binding contract of sale of land has been entered into, such as a court of equity will specifically enforce against an unwilling purchaser the contract operates as a conversion. Keep et al. v. Miller, 42 N. J. Eq. 100, 6 Atl. 495. See, also, 7 Am. & Eng. Enc. of Law (2d Ed.) 471, cases cited in note 1.

The only authority cited by appellants in opposition to this general rule which can be said to be at all in point is Kerr v. Day, 14 Pa. 112, 53 Am. Dec. 526. That case, however, cannot be considered as an authority in their favor, for in that case the contract of sale was not enforceable, and for that reason it was held that a conversion was prevented. Had the contract been valid and enforceable, as the contract in the case at bar, it is evident that the decision would have been otherwise.

The real estate in question, having assumed the character of personalty went to the executors, and it continued as personalty for the purposes of administration, so that the executors could, after the can