But notwithstanding a direction that moneys to arise from a sale of realty are to be considered as part of the personal estate, they will not pass under a gift of the residuary personalty, if the residuary gift is followed by a gift of the moneys arising from the sale. Parke, 4 Russ. 75; 2 R. & M. 221. Amphlett v. residue of the the pronot sale of ceeds of 2. It seems clear that under the old law a gift of the Gift of the residue of the proceeds of sale of realty fell under same rule as an ordinary residuary devise, and did carry legacies given out of the proceeds, which failed realty through lapse or otherwise. Jones v. Mitchell, 1 S. & St. old law. 290; Hutcheson v. Hammond, 3 B. C. C. 128. under the converted 3. Upon the question whether conversion is directed Whether for all the purposes of the will, so that interests in realty the proceeds of sale of realty which are undisposed of passes by a residuary or fail by reason of lapse or otherwise, are intended to bequest. pass by a general bequest of residuary personalty, the cases run into fine, though, perhaps, not irreconcileable distinctions. tain time sons who a. When conversion is directed at the death of a tenant Direction to convert for life, and the proceeds are to be divided among a class at a cerof persons who at that time may not be in existence, or and divide may never come into existence; for instance, such of the among perchildren of the tenant for life as attain twenty-one, con- may not version is not merely for the purpose of division, but for existence. all the purposes of the will, and the property passes to the residuary legatee as personalty. Wall v. Colshead, 2 De G. & J. 683. then be in direction b. Where there is an absolute direction to sell realty not Absolute limited to any particular purpose, the surplus proceeds to sell. will pass to the residuary legatee. Singleton v. Tomlinson, 3 App. C. 404, affirming S. C. nom. Watson v. Arundell, I. R. 11 Eq. 53. certain c. If the realty is to be sold for a particular purpose, for Sale for instance, to pay legacies, the surplus proceeds will not pass purposes. Gift of a mixed converted. under a gift of residuary personalty. Maugham v. Mason, 1 V. & B. 410. d. Where realty and personalty are once for all blended fund to be together, and directed to be converted, interests undisposed of will pass to the residuary legatee. Durour v. Motteux, 1 Ves. sen. 320; 1 S. & St. 292 n.; Byam v. Munton, 1 R. & M. 503; Green v. Jackson, 5 Russ. 35; 2 R. & M. 238; Salt v. Chattaway, 3 B. 576; Spencer v. Wilson, 16 Eq 501; Court v. Buckland, 45 L. J. Ch. 214; Norreys v. Franks, I. R. 9 Eq. 18. Cruse v. Barley, 3 P. Wms. 20, may probably be accounted for on the principle that the gift of residue there was not of a real residue, but of the residue of a real residue. The residue had in effect already been given among the testator's children, and the subsequent words only indicated what shares in that residue each was to take, and upon lapse of one of those shares a portion of the residue was thereby undisposed of. Realty directed e. But when the realty directed to be converted and to be con- the personalty are the subject of separate gifts, and are verted the treated as distinct funds, the residuary bequest will not carry subject of a separate interests undisposed of in the realty. Maugham v. Mason, gift. 1 V. & B. 410; Hutcheson v. Hammond, 3 B. C. C. 128. Realty and f. Intermediate between the last two classes of cases falls personalty blended a class of cases where the real and personal estate are but treated blended together, but the two funds are treated as distinct funds. and independent, in which case the interests in the realty as distinct undisposed of will not pass to the residuary legatee. Thus, though realty and personalty are blended together and directed to be converted, if the proceeds of the sale of the realty are treated as a separate fund for certain payments, interests undisposed of will not pass under the gift of the residuary personalty. Dixon v. Dawson, 2 S. & St. 327. So, too, if there is a gift as well of the residue of the moneys to arise from the sale as of the residue of the personal estate, the latter residue will not carry legacies given out of the proceeds of sale which lapse. Gravenor v. Hallum, Ambl. 643; Gibbs v. Rumsey, 2 V. & B. 294. But the fact that the residue of the money to arise from the sale of realty is expressly given will not prevent such money from passing under the residuary personalty, if the residue of the money is only mentioned as part of the enumeration of the things of which the residuary personalty consists. Kennell v. Abbott, 4 Ves. 802. III. CONVERSION IS LIMITED TO THE PURPOSES OF THE WILL. titled to be con undisposed Conversion directed by a testator is a conversion only Who is enfor the purposes of the will, and all that is not wanted for property these purposes goes to the persons who would have been directed to entitled but for the will. Therefore, where real and per- verted but sonal estate is directed to be sold, and after payment of of by the debts and legacies the residue is given to persons, some of whom die before the testator, the lapsed shares go proportionally to the heir-at-law and next of kin. Ackroyd v. Smithson, 1 B. C. C. 503. will. tion that sale of realty are A declaration that the proceeds of the sale of realty are Declara to be part of the personal estate for all purposes will not proceeds of deprive the heir of such proportion of the proceeds of realty as is undisposed of, there being no express gift to to be perthe next of kin. Shallcross v. Wright, 12 B. 505; Taylor estate. v. Taylor, 3 D. M. & G. 190, overruling Phillips v. Phillips, 1 M. & K. 649. Nor will a declaration, that the proceeds of the sale shall not lapse for the benefit of the heir, exclude the heir, if a disposition is intended to be made of the property. Flint v. Warren, 16 Sim. 134; Fitch v. Weber, 6 Ha. 145. But if the surplus of the sale of real estate is directed to be personal estate, and given to the executors, they sonal Money to be invested in land. take in trust for the next of kin. Countess of Bristol v. Hungerford, 2 Vern. 645, corrected 3 P. Wms. 194. The same rule applies to the case of money to be invested in land, which, upon failure of the particular dispositions, or any of them, results so far for the next of kin. Cogan v. Stevens, 5 L. J. Ch. 17; 1 B. 482, n.; Hereford v. Ravenhill, 1 B. 481; 5 B. 51; Head v. Godlee, Johns. 536; Bective v. Hodgson, 10 H. L. 656. Where the purpose of the con version wholly fails. Where it fails partially. IV. HOW THE HEIR AND NEXT OF KIN TAKE PROPERTY 1. Where a conversion of realty is directed and the objects of the conversion wholly fail, the heir takes the property as realty, whether a sale has taken place or not. Chitty v. Parker, 2 Ves. jun. 271; but quare whether the question arose in this case. Davenport v. Coltman, 12 Sim. 610. 2. But where some purpose of the will can be answered by a sale, where, for instance, there is a tenant for life or one of several tenants in common who survives the testator, the heir takes the property as personalty. Wright v. Wright, 16 Ves. 188; Smith v. Claxton, 4 Mad. 484; Wilson v. Coles, 28 B. 215; Hamilton v. Foote, I. R. 6 Eq. 572. Upon this principle, where a sum is directed to be raised out of devised lands and is given for life with remainders, and the remainders fail, upon the death of the tenant for life the sum charged belongs to the devisee of the land as personalty. In re Newberry's Trusts, 5 Ch. D. 746. It would seem that where realty, directed to be converted, is only an auxiliary fund for payment of debts, and the personalty is sufficient to satisfy them, such realty will, on failure of all the other purposes, go to the heir as land. Chitty v. Parker, 2 Ves. jun. 271. (?) But where realty and personalty are given together to be converted and charged with debts, so that the realty is applicable pro ratâ, the heir takes the realty as money on failure of all the other purposes of the conversion. A.-G. v. Lomas, L. R. 9 Ex. 29. time it is tained poses have It has been said that the testator's death is the time at At what which it must be ascertained whether the purposes for to be ascerwhich conversion is directed have failed or not, and there- whether fore if at that time those purposes may possibly take effect, the pur. the heir takes as money, though they may subsequently failed. fail. Carr v. Collins, 7 Jur. 165. The exact point, however, was not there decided, since, in that case, conversion was effectual with respect to the legacy of £1000. be laid out goes to the 3. In the same way personalty laid out in land in Money to pursuance of a direction in the will, but only partially in land disposed of, will go to the next of kin as land. Curteis V. next of kin Wormald, 10 Ch. D. 172, overruling Reynolds v. Godlee, Johns. 536, 582. V. CONVERSION AS BETWEEN TENANT FOR LIFE AND REMAINDERMAN. as land. sion of When there is no express trust to convert, but a residue Converof personalty is given en masse to several persons succes- residuary personalty sively, wasting property must be converted, unless it appears given to from the will that specific enjoyment by the tenant for life several was intended. Howe v. Lord Dartmouth, 7 Ves. 137; successively. Johnson v. Johnson, 2 Coll. 441; Thornton v. Ellis, 15 B. 193; Macdonald v. Irvine, 8 Ch. D. 101. And in the same way the tenant for life is entitled to have reversionary property converted, though the reversion is dependent upon his own life interest. Wilkinson v. Duncan, 23 B. 469; Johnson v. Routh, 3 Jur. N. S. 1041; 27 L. J. Ch. 305; Countess of Harrington v. Atherton, 3 D. J. & S. 352. persons |