& J. 490; see Tatham v. Vernon, 29 B. 604; Torrens v. Millington, 26 W. R. 753. Similarly, if the exception can be read as intended only to exclude the property from a trust for sale to which the residue is subject, the property excepted passes to the residuary legatees. James v. Irving, 10 B. 276; Dobson v. Banks, 32 B. 259. On the other hand, if the residue is given charged with debts, and certain property is exonerated from the charge and excepted from the residue, it will not pass with the residue on failure of the particular bequest. Wainman v. Field, Kay, 507. Where the residue itself is distributed in certain shares, and a legacy is given out of one of the shares, followed by a disposition of the residue of such share, the legacy is undisposed of, if the legatee predeceases the testator. Skrymsher v. Northcote, 1 Sw. 566; Lloyd v. Lloyd, 4 B. 231. So, where the residue is given as to one-fourth on trusts which fail, a gift of the residue of that residue will not carry the lapsed fourth. Simmons v. Rudall, 1 Sim. N. S. 115. A bequest of residue beyond a sum of £10,000, directed to be set apart out of the residue, will not carry lapsed portions of the £10,000. Green v. Pertwee, 5 H. 249. Where the residue is given between several persons nominatim as tenants in common, and the gift to one of them is revoked, the gift of that share lapses, whether the revocation be of the share or of the trusts of the will, so far as they relate to the share. Cresswell v. Cheslyn, 2 Ed. 123; Ramsay v. Shelmerdine, L. R. 1 Eq. 129; Sykes v. Sykes, 4 Eq. 200; 3 Ch. 301. If a share is expressed to be revoked with a view to put the other residuary legatees on an equality with the one whose share is revoked, the revoked share passes to the others. Vaudrey v. Howard, 2 W. R. 32. Where the residue is completely disposed of, and by a subsequent clause the testator directs that another person is to take a share, the effect of a revocation of the latter gift is to leave the earlier gift of the whole residue effectual. Harris v. Davis, 1 Coll. 416. that share shall fall A direction that a share of residue, the trusts of which Direction fail or which is undisposed of, should fall into residue and be of residue disposed of, or be held and applied, or be paid and divided into accordingly, has in several cases been held insufficient to residue. carry the share to the other residuary legatees or to prevent a lapse of any part of the share. Humble v. Shore, 7 H. 247; 1 H. & M. 550; Lightfoot v. Burstall, 1 H. & M. 546; Re Bevis's Trusts, 20 W. R. 359; In re Barker's Estate; Hetherington v. Longrigg, 15 Ch. D. 635; In re Savage's Trusts, 50 L. J. Ch. 131. In a recent case, however, upon words which it would be very difficult to distinguish from those used in the cases above cited, it was held that a share directed to fall into residue and be paid according to the trusts of the will, passed to the other residuary legatees. Crawshaw v. Crawshaw, 14 Ch. D. 817. It would seem that a share of residue, directed in certain events to sink into residue and be paid accordingly, might very well be divided in the same way as the residue. For instance, if the residue is given in thirds, the lapsed third would itself be divisible in thirds; and if the process could be continued ad infinitum the other residuary legatecs would, in effect, take the whole. See Evans v. Field, 8 L. J. Ch. 264; Atkinson v. Jones, Joh. 246. Where one of the residuary legatees dies and the testator, by codicil, confirms the will, except as to any legacy lapsed, it has been held that the share of the deceased legatee is undisposed of. Re Mary Wood's Will, 29 B. 236. CHAPTER XXI. CONVERSION. What amounts to I. WHAT AMOUNTS TO A DIRECTION TO CONVERT. PROPERTY directed to be converted is considered as that a direction species of property into which it is to be converted, and to convert. passes to a legatee or devisee as if the conversion had actually taken place. Direction that land is to be money or A direction that land is to be considered as money or vice versa will not work a conversion, but an actual change considered of one form of property into another must be intended. Johnson v. Arnold, 1 Ves. sen. 171; A.-G. v. Mangles, 5 M. & W. 120; Edwards v. Tuck, 23 B. 268; 3 D. M. & G. 40. money land. Direction to divide. Power to convert. A direction to divide does not imply a conversion. Cornick v. Pearce, 7 Ha. 477; Lucas v. Brandreth, 28 B. 273. But a direction to get together and divide among a large number of legatees property consisting of realty and personalty and previously described as scattered about and not realised, coupled with a direction to invest some of the shares, is in effect a direction to convert. Mower v. Orr, 7 Ha. 475. A mere power to convert will not effect a conversion. Greenway v. Greenway, 2 D. F. & J. 128. Though if legacies payable in the ordinary course are to be paid after the conversion, the power is in effect a trust. Burrell v. Baskerfield, 11 B. 525. Where a conversion is directed, the fact that the trustees have a discretion as to time will not alter the general rule. Doughty v. Bull, 2 P. W. 320. sion upon When conversion is to take place upon request the Converquestion is whether the conversion was intended to be request. made in all events, and the request is only an additional safeguard, or whether no conversion was intended till request. If the conversion is to be upon request of certain persons, and the property is disposed of, whether converted or not, there is no conversion till the request. Taylor's Settlement, 9 Ha. 596; Davies v. Goodhew, 6 Sim. 585. On the other hand, if there is a general intention to convert evidenced by the fact that the limitations are applicable only to the property as converted, and by the fact that the conversion is to be at the request of certain persons, or the survivor or the executors or administrators of the survivor, the property will be considered as converted. Thornton v. Hawley, 10 Ves. 129; see Lechmere v. Earl of Carlisle, 3 P. Wms. 211. continue Where there is an express trust to convert, a power to Power to continue any government stocks and real securities will governbe confined to such as are of a permanent character. ment seTickner v. Old, 18 Eq. 422. curities where there is a convert. But where the trust was to convert such parts as should trust to not be invested in the public funds or government securities, long annuities were held within the exception, and enjoyable in specie. Wilday v. Sandys, 7 Eq. 455. to trustees. Where trustees have an absolute discretion to convert or Absolute discretion not, the property remains unconverted till the discretion is exercised. Polley v. Seymour, 2 Y. & C. Ex. 708; Yates v. Yates, 6 Jur. N. S. 1023; Brown v. Bigg, 7 Ves. 279; Bourne v. Bourne, 2 Ha. 35. Similarly, where trustees have an option to convert either into realty or personalty, the property will be considered of Discretion may be Van v. that species into which the trustees convert it. The option of the trustees may, however, be controlled controlled by the general intention expressed in the will. Thus, if by the context. the property to be converted is settled to uses exclusively applicable to realty; as, for instance, in tail with remainders, the property will be considered as realty notwithstanding the option. Earlom v. Saunders, Amb. 241; Hereford v. Ravenhill, 5 B. 51; Evans v. Ball, 38 L. T. N. S. 141; see Minors v. Battison, 1 App. C. 428. And in such a case an ultimate limitation to the testator's right heirs, executors, and administrators will not prevent the property being considered as land with respect to the prior interests. Cowley v. Harstonge, 1 Dow. 361. The fact that personalty which trustees have an option to convert is given to a person, his heirs and assigns, is not sufficient to limit the option of the trustees. Atwell v. Atwell, 13 Eq. 23. But if it is given to a person and his heirs for ever, the property will apparently be considered converted notwithstanding the option of the trustees. Cookson v. Reay, 5 B. 22; see 12 Cl. & F. 121. Direction that converted realty should form part of the personal estate. II. WHETHER CONVERSION IS DIRECTED FOR ALL THE 1. Where realty is directed to be converted and form part of the personal estate, it will be subject to all the limitations of the personal estate, and will pass by the residuary bequest. Kidney v. Coussmaker, 1 Ves. jun. 436; Robinson v. Governors of London Hospital, 10 Ha. 19, 27; see Bright v. Larcher, 3 De G. & J. 148; Field v. Peckett, 29 B. 568; quare, whether Collier v. Wakeman, 2 Ves jun. 683, would be followed. |