that if a man seised of real estate contract. to sell it, and die before the contract is carried into execution, it is his personal property, the only possible difficulty in this case was the option, that it was left to the election of D. whether it should be real or personal, and which seemed to make no distinction at all; for suppose a man should bargain for the sale of timber, provided the buyer should give proper security for the payment of the money, this when cut down would be part of the personal estate, although it depends upon the buyer whether he gives security or not; and as to the circumstance of the capability of D. to release his power of election, he thought a court of equity would relieve against that, if it appears to be done collusively to oust the legatee of his personal estate; when the party who has the power of making the election has elected, the whole is to be referred back to the original agreement, and the only difference was, that the real estate was converted into personal at a future period. And he therefore declared this 3000l. to be part of the personal estate of the testator. As in Bubb's case, where A. did contract with B. for a parcel of land for 5000l., and paid him 1407. in part, but before the rest of the money was paid, or any conveyance executed, B. dies and makes C. his executor, D. being his heir. — C. prefers a bill against A. and D. to have the rest of the purchase-money; who answered, that they did not intend to proceed with the bargain, and A. said he was willing to lose his 1407. that he had paid. But the Court ruled, that the executor should have the money, and that A. might, when he pleased, compel the heir to execute a conveyance of the estate; and the reporter adds in a note, that the Court took this to be a fraud betwixt A. and the heir, supposing that the heir had agreed to pay back the money to A., and so to have kept the land, which was worth much more; for now the heir was to convey the land, but to have nothing for it, for the executor was to have the money. Vide Freem. C. 38., and the note there. So, likewise, where three persons joining in trade, requiring a mixture of real and personal property for the management of the business, enter into a deed of partnership by which it is provided, that upon the decease of the shortest liver of the partners, the two survivors, if they should think proper, or such survivor as might think proper, might have and take the part or share of such shortest liver at the price therein agreed on, upon condition that such price should be paid to the trustees within six months after the death of the shortest liver. One of the surviving partners elected to purchase the share of the deceased partner. And the question was, what interest the deceased partner had in the freehold premises, whether the money arising therefrom should go to the heir or be treated as personal property, whether in fact three persons, having interests as tenants in common, and looking to certain events, (amongst the rest, the death of the shortest liver, and which had happened,) might not contract in this manner, in order to make the most of the property, though real in a strict sense, yet commercial in its nature, to sell it altogether; and upon this deed the Chancellor thought such intention appeared, and that this was a case of contract for sale looking to a certain event which had happened, and therefore the property must be considered as the personal and not the real estate of the deceased partner.* But when money is to be laid out in land, or remain unconverted until any definite period, it is important that such an intention be as clearly and ex plicitly made, as when an absolute and immediate conversion is intended. As illustrative of the propriety of clearly indicating such an intention, we may state the facts of the case of Wheldale v. Partridge: By a deed-poll reciting the marriage of E. W. and S. W. and that before the marriage S. W. was seized in fee of certain lands in the county of Lincoln, devised to her by her father, and that upon the request of E. W. she had consented to the sale thereof, and had executed proper conveyances for that purpose, and in consideration thereof E. W. had paid to a trustee 1200l., part of the money raised by the sale, to be disposed of as after mentioned, E. W. and his wife granted the 1200l. to the trustee, his executors, &c., upon the trusts after declared; and agreed that the trustee, his executors or administrators, should lay out the money in the purchase of lands and tenements lying in the said county, of as good value as he or they could get for the same, as soon as conveniently might be; and should cause or procure such lands and tenements, when purchased, to be settled and conveyed to such uses as E. W. and S. his wife should appoint, and for want of such appointment to the use of the right heirs of S. W. the wife for ever: and it was agreed that the trustee, his executors and administrators, should, in the mean time, until such purchase and settlement could be made, put out at interest the 12007., upon such security as S. W. should approve, in his and their names, and pay the interest thereof from time to time to E. W. and his assigns during his life; and after his decease pay and apply the principal money and interest in manner therein mentioned; that b 5 Ves. 388. 8 Ves. 227. is to say, in case S. W. should happen to survive E. W., then in trust, that the trustee, his executors or administrators, should after the death of E. W. pay all the said money, as well principal as interest, unto S. W. and her assigns, to be disposed of at her free will and pleasure; and in case S. W. should die before E. W., and leave any child or children, then that the trustee, his executors and administrators, after the death of E. W., should apply and dispose of all the said money, as well principal as interest, towards the maintenance and education of the children, until they should attain the age of twenty-one years; and then the residue of such principal should be equally divided amongst them: but if such child and children should have attained that age at the time of the death of E. W. then the trustee, his executors and administrators, should pay the said principal money, and such interest as should then happen to be in arrear and unpaid, to such child and children, to be equally divided amongst them, if more than one, or their legal representatives: but in case S. W. should happen to die before E. W., and leave no children, then the trustee, his executors and administrators, should after the death of E. W. pay the said principal money and all the interest thereof unto such person or persons as S. W. should by her last will and testament, in writing, or by any other writing to be signed by her in the presence of two or more credible witnesses, give and bequeath, and at such time and times as the said S. W. by such last will or writing should direct or appoint. The money was afterwards invested on proper securities, and so continued till the death of S. W., who died without issue; leaving her husband surviving, who died soon afterwards. No appointment was executed by will or otherwise. The question was, whether E. W. and S. W. his wife had, under the circumstances, declared their intention that this property should be land, and settled, with the ultimate remainder to the heirs of S. W. In the first instance, the Master of the Rolls con ́sidered this money as land; afterwards, on reconsideration, he was of opinion that the money must, in the event that had happened, be taken as money, and not land. The case was afterwards heard on appeal before the Lord Chancellor, when His Lordship gave the question the most elaborate consideration. "I avow," said he, "that my mind is subdued by the difficulties presented on the part of the heirs; and I have not con'fidence enough to say, the difficulties on the other side are not as considerable." His Lordship then proceeded to state the facts, as favourably as possible for the heir, observing that this money was raised out of the produce of the wife's estate, and that to that extent neither she nor her heirs ought to be in a worse situtation; and having remarked that if the deed had concluded at the first declaration of the trust, according to the appointment of W. and his wife, and, for want of appointment, to her right heirs for ever, it would immediately upon the execution have impressed this money with real qualities; and that the peculiarity of the words "lying in the said county" would not have taken it out of the rule in general cases, impressing it with real uses and qualities; and that if land had been proffered, a proper conveyance would have been made, either at the suggestion of the parties themselves, or of the Court, His Lordship observed, the question was, upon the whole, whether, notwith |