and so likewise where the trustees of an infant's estate having a considerable sum of money in their hands, which they had raised out of his real estate, invested it in lands lying advantageous to the estate, with the guardian's consent, and by the conveyance to the trustees it was declared, that they stood seised in trust for the infant, in case when he came of age he should accept the lands at the rate they had bought them, and discharge them of the sum so laid out: the infant dying under age, the trustees were held to be accountable to the administrator of the infant for the sum laid out, and his heir was declared to have no title to the lands.

It has been said, that the proper mode which trustees should adopt, when authorised to purchase real estate, by means of the personal property of an infant, is to procure the conveyance to be made to the trustee, in trust for the infant, his executors, and administrators, until he should attain the age of 21, and from and immediately after that period in trust for the infant, and his heirs. It is, however, far more preferable to procure the conveyance to be made to the trustee, with a declaration generally, that it shall be considered as personal estate, without saying, until the infant should attain 21, for at that period the infant might be under disabilities as to the management of his property, and if he is not, he may then, if he pleases, consider it as real estate. By a conveyance so qualified, it is evident no injustice can be committed to the infant or his representative; and the

► Earl of Winchelsea v. Norcliffe, 1 Vern. 434.
Ashburton v. Ashburton, 6 Ves. 6.

Court has approved of this method; and the necessity of it may be appreciated by contemplating the case of Ashby v. Palmer. But if the trustees omit this declaration as to the nature of the real estate, yet neither the infant nor his representative will suffer by such an omission; for if there was not a declaration by the trustees, that such rights should not be altered in the event of the infant dying under age, a court of equity would imply it; and although it is said, that if the trustees come into Chancery, and obtain a decree for the investing an infant's money in a purchase, the Court will maintain its own decree", and when it is manifestly beneficial, will, either by a decree or an order, not only change the nature of the infant's property, but will support the conduct of guardians and trustees, if under circumstances of which the Court can approve and consider for the benefit of the infant°; yet as the Court expressly disowns the right to change the nature of the property, when this language is used it must not be construed to extend to such an alteration in the property as would affect the rights of his representatives. For, as Lord Eldon says, " I have uniformly made it a rule, where property of one nature has been applied for the benefit of an infant to property of another nature, to have an express provision, that if he shall not attain the age at which he will have a disposable power, the representative shall not be prejudiced in any degree by

the act done by the Court in contemplation of the infant's benefit, in all the circumstances which surprise or accident can throw around it. It is said this is the effect of the Court's declaration; and if the Court forgets to make that declaration, that the same rule does not obtain, and the Court has disposed of the property by an imperfect judgment, in another manner, and subject to different equities. But that is not correct; for the declaration is made because it is the law applicable to the case of the infant, and it is of course to reform the order. The Court only determines that the guardian or trustee ought not to omit this declaration, and, consequently, if they do omit it, they act unduly by the infant."

If, therefore, the Court, or the guardian, does not, at the time of the conversion, make a declaration respecting the rights of the infant's representatives, in case he never attains an age to dispose of his real estate, the personal representative will not be affected by such an omission, but will be entitled to such a respective quantum of interest in the real estate as would be equivalent to the infant's personal property before the conversion. But if the guardian has an absolute authority to deal with the property as he shall think most conducive to the infant's interest, under such circumstances he has been allowed to alter unqualifiedly the nature of the infant's property'; and the Court will also allow the trustee to deviate from the letter, if he still conform to the spirit of the trust: as where W. D., by his will, directed his trustees to lay out a sum of money in the

9 Ware v. Polhill, 11 Ves. 257.
* Terry v. Terry, Cha. Prec. 273.

4

purchase of freehold land only, upon a petition of the trustees suggesting, that they could not, without great disadvantage, purchase the freehold of an estate, unless they took along with it a college-lease, the Court dispensed with the strict directions of the will, and approved of the purchase of the lease at the same time with the freehold; and therefore it would seem that, if it was desirable, the trustees could lay out part of the trust-money upon actual improvements on the freehold itself: but if personal property be changed by the guardian into real estate, and the rents are received by the cestuique trust when an adult, it will be accounted such an acquiescence in the act of his guardian as to leave it no longer disputable.

t

Hitherto we have spoken only of the application of the infant's personal property to the actual purchase of real estate; but it frequently happens that guardians or trustees, thinking it desirable to relieve the infant's estate from charges and incumbrances, apply his personal property to those purposes; and as such charges and incumbrances are certainly an interest in the lands on which they are secured, this application of the infant's personalty is to all intents such a conversion of his property as effectually to alter its nature. The law regarding the application by the guardian of the personal property of infants, who are tenants in fee of the estates on which the charges and incumbrances are secured, in many respects materially differs from that by which the conduct of guardians should be regulated, when the infants have only an estate-tail; for if there is a charge

on real estate, which estate itself comes to the person entitled to the money, if the estate is in fee the charge will merge", unless there is evidence of the owner's intention to the contrary; as where there was a term of 500 years in trustees to secure a daughter's portion, payable at eighteen, or marriage, the fee descended to the daughter, who afterwards died unmarried, and an infant of the age of eighteen, having first made a nuncupative will, and thereby devised all in her power to her mother; whereupon it was decreed by Lord Somers, and affirmed by the House of Lords, that this portion was not merged, but should go to her mother, who had administration with the will annexed."

And if there is any incumbrance on the estate in fee of an infant, to which a third person is entitled, the guardian may discharge it by means of the infant's personal estate, as that could work no injustice to the infant nor to his representative; for had the money come to the hands of the executor it would have been liable to the debt due by mortage, and the heir could have compelled him to have paid off the incumbrance. "

But where the infant is tenant in tail of an estate charged with an incumbrance, the relieving of such an estate by the guardian would be in fact a gift of so much money to the remainder-man at the expence of the infant's personal representative, and, consequently, a breach of trust on the part of the guardian. The distinction between the case of an infant tenant in fee, and that of an infant tenant in tail, has always been acknow

■ Duke of Chandos v. Talbot, 2 P. Wms. 601.

Thomas v. Kemeys, 2 Vern. 348. 1 Eq. Abr. 268. and Freem. 207. w Dennis v. Badd, 1 Cha. Ca. 156. and 1 Eq. Abr. 261.