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Distinction between the case

which, doubtless, would extend to all the debts contracted during his life. It was insisted, however, that the statute was equally defeated by the privilege of charging land with legacies or debts to any extent by an unsolemn will, where the land has been generally charged by a previous attested will, as by this power of appointing, reserved by a will; for, as to debts it was said, that by a bond, creating a voluntary debt, a testator might circuitously dispose of the whole value of his estate; so likewise, after having generally charged legacies upon his estate by an attested will, he might devise away the whole of his property by any testamentary paper, by creating a charge equal to its value.

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But a convincing reply to this reasoning was given by the Lord Chancellor. His Lordship said, ing the land, by" that it was supposed to be Sir Joseph Jekyll's opi

of subsequent

legacies charg

virtue of a for

mer will charg- nion in Masters v. Masters, that it might be supporting them geneed as a power, reserved to the testator, to increase the

rally upon the

land, and the re

of a future pow

servation by will charge by a future act. That could not be the er of disposition. ground of his opinion. There was a manifest incongruity in the supposition of a power, reserved by a man's own will, which cannot begin to operate till all power in him ceases. The observation made by Mr. Justice Wilson was unanswerable, that it is not a personal privilege; and that no man can reserve a power to act against the forms which the law has imposed. Therefore, if it were to pass by a testamentary act,

such act must have all the solemnities which the law has directed."

But in a correct MS. note in his Lordship's possession, Lord Hardwicke had stated the ground to be the analogy to the case of debts; which was the ground of the determination. His Lordship added, "that the cases to which he had alluded, were none of them cases of a primary, substantive, independent charge upon the real estate, but a charge upon it in aid of the personal, which was primarily charged. Such a charge, whether for debts or legacies, was necessarily uncertain in extent not merely because the testator could not ascertain what might be the amount of his future engagements, but because the amount of the personal estate was fluctuating."

"A charge for legacies, therefore (his Lordshipsaid) must be uncertain as to its extent; not merely because the testator could not ascertain what might be the amount of his future engagements, but because the amount of the personal estate was fluctuating. Whatever affects the primary fund, varies the amount of the charge. Therefore, though given by a will duly executed, they are revocable by a will not so executed; for the charge upon the land was only for the deficiency of the personal to answer the legacies. If the legacies were taken away, the land would not be affected. If they were increased they would affect the real by diminishing the personal,

devised out of

land is part of

the land in

equity, and such

disposition is within the statutes of frauds.

which it was in the power of the owner to do all his life. That it was obvious, therefore, from that reasoning, that the statute of frauds did not affect the question as to legacies, because it did not prevent a man from creating by will, a fluctuating charge upon real, in aid of personal property. But that, said his Lordship, could bear no application to a devise of the land itself, or a reserved part of the real not disposed of; nor, as he conceived, to an original charge upon the land; which he should think could not be revoked by a second informal will. If ever such a case arose, it would be a new question."

From Brudenell v. Boughton', so often referred to in the above-mentioned case of Habergham v. Vincent, we collect the following useful distinctions A sum of money upon the subject. If a sum of money be given originally and primarily out of the land, such a devise requires as much the solemnities of execution prescribed by the statute, as a devise of the land itself; because the money is regarded in a court of equity as part of the land, since it can only be raised by sale or disposition of part of the land; and this is considered as, analogous to the rule of law, that a devise of the rents and profits is a devise of the land itself. And if money be so charged upon land by a will with the due solemnities, a subsequent will unattested, or attested by one or two witnesses only, cannot revoke or subtract the charge.

2 Atk. 267.

But where land is made subject to legacies generally, such legacies are nevertheless to be considered as primarily attaching upon the personal estate, so that if there are personal assets sufficient, the land will be exempt, for it is only a collateral security; and by a consequence in reasoning, if the will be revoked as to the personal, the object of the collateral security is gone, and the land remains no longer charged. The legacies given by the first will may be withdrawn by a second unexecuted according to the statute; and by such second will, new legacies may be substituted of a different amount; or, without changing or modifying the legacies first given, additional ones may be given either to the same or different persons.

will to sell lands

for certain pur

so ultimately

poses, does not

change the character of the property, as that

the particular

A circumstance to be attended to in considering A direction by the subject of these cases, is, that by the first will executed to pass and affect real property according to the requisitions of the statute, the land is effectually made an auxiliary and collateral fund to the personal the surplus, after property in respect of legacies; to this indefinite objects are satisextent it becomes a pledge, and impressed with the fied, may pass by character of personal estate, But it is to be ob- codicil served, that if a will, properly attested, contains a direction to sell real estates, and out of the produce to pay legacies, such direction does not so stamp. this character of personal estate upon the whole, or produce so complete and ultimate a conversion of the

Vid. Hannis v. Packer, Ambl. 556.

G

an unattested

To effect this absolute conver

sion, a clear intention ought to be demonstrated.

land into personalty, as that the surplus, after the
legacies are satisfied, may pass by an unattested co-
dicil. To produce this effect, the testator ought, in
a will executed and attested so as to pass freehold
estate, to manifest a clear intention to have the whole
actually sold, or at least should in such will decidedly
shew that he contemplates the surplus as personal
estate, and intends to bring the whole within that de-
scription of property. To this limit the cases cited
in Sheddon v. Goodrich, seem to have carried and
confirmed the doctrine. What is not absolutely con-
verted either in law or equity, but is only directed to
be sold to answer a particular purpose, as to pay le-
gacies, for which the testator has directed certain con-
veyances to be made, retains, as to the surplus, its cha-
racter of real estate. For the particular purpose to
which the produce is destined, the conversion into
personal estate takes place, but as between the
personal and real representatives it remains real.

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1

It is upon this principle, that if the object for which the conversion was to be made, does not come into existence, and thus no reason arises for any conversion to answer the purposes of the will, the estate descends, in the view of a court of equity, as real, to the heir at law. If money be directed to be laid out in land, the person to whom the entire interest in the land would belong under the will, if purchased, may, before the investiture, elect to take it either as money

8 Vez. jun. 481.

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