tator's death and the sale of the testator's personal

estate.

of

So, likewise, the personal property of a testator, directed to be turned into money, in order to be laid out in land, may consist of an interest wearing out as a lease for years, or an interest at present saleable, but in point of enjoyment, future, as a bond to receive a certain sum money, but which does not bear interest, or a lease to commence at a future day; and in questions of this nature, between the tenant for life and the remainderman, a valuation is fixed, and the tenant for life is entitled to the interest of the capital produced, or supposed to be produced from such valuation; so likewise where, in the case of a trade, the profits were to continue to a certain period after the testator's death, and then the balance being liquidated to be divided at various periods between the partners, the tenant for life of the fund constituted of such personalty was, during the period between the death of the testator and the termination of the partnership, entitled to the interest at a given rate, and not the profits; and after the termination of the partnership, to the interest of the testator's share of the balance, to be paid at the various periods, that interest being calculated with reference to the circumstance of the balance being paid in at different stated periods."

If, then, the capital to be constituted by means of such interests as are wearing out, and not capable of present enjoyment, be by will ultimately directed to be laid out in land to be settled in strict settlement, it it would seem that the like rules are applicable as to

P Fearns v. Young, 9 Ves. 549.

the interest of the tenant for life, until by the purchase of land he is able to enjoy the rents and profits.

It is submitted, that, in the conversion by will of personalty into realty, the following conclusions are established by the preceding cases:

1st. That generally this conversion takes effect from the death of the testator.

2dly. That if the fund for this conversion into realty to be settled in strict settlement, be constituted by residuary personal estate, with a clause for accumulation of interest until the whole can be collected in a mass for such conversion, in a question between the tenant for life and remainder-man, the operation of this clause will be restricted to one year from the death of the testator, when the tenant for life will begin to be entitled to the interest in lieu of the rents and profits, until the purchase is made.

3dly. That if there be no such clause of accumulation, although this fund be constituted of residuary personal estate, if it be clear and there is no inconvenience, there does not exist any reason why the tenant for life should not commence immediately to enjoy the interest.

4thly. That upon the doctrine in Gibson v. Bott, if there be any increase of the testator's personal estate in the period between his death and the constitution of the fund for conversion, the tenant for life will be entitled to the benefit of the interest of that part of the fund formed by this increase.

5thly. If the testator's personal estate to be converted into realty to be settled in strict settlement should consist of the partnership of any trade, the dissolution of which is to take place, and the profits to be divided at stated periods after his death, in a question between the tenant for life and remainder-man upon the doctrine

of Fearns v. Young, the tenant for life will be entitled to interest at a given rate, and not the profits until the termination of the partnership, and then to an interest on the capital due to the testator out of the concern, the capital being valued with reference to the periods at which the instalments of it are payable; and if the personal estate should consist of any interest wearing out or whose enjoyment is future, that a valuation should be made at the death of the testator, and the tenant for life be entitled to the interest arising from the supposed value of such interests, until the produce be laid out in land when he will be entitled to the rents and profits.

Lastly, we may add, that if the money to be settled be invested in stock until a convenient purchase in land be found, as a Court of Equity cannot apportion the dividends, if the tenant for life die in the middle of a quarter, the interest of the remainder-man will commence from the receipt of the last dividends, for by act of parliament the dividends on stock are made payable on certain days, therefore these dividends are like rent, and distinguishable from interest of money; and it will be the same though the interest and dividends were directed to go as the rents and profits would in case it was laid out in land; and although it was supposed that under the statute of 11 Geo. 2. c. 19., the dividends ought to be apportioned between the personal representatives of the tenant for life and the remainderman, yet that act only applies to demises and leases determinable on the death of the tenant for life; but if the money be laid out in mortgage securities, the tenant for life will be entitled to an apportionment, for the

Rashleigh v. Masters, 3

a Wilson v. Harman, 2 Ves. sen. 672. Bro. C.C. 99. Sherard v. Sherard, 3 Ath 502.

interest on a mortgage becomes due de die in diem, and a mortgagee may at any time call in his money and receive interest up to the day, because no particular time is fixed."

II. As to the period from which a conversion by will of realty into personalty may likewise be supposed

to commence.

It is evident that on account of the real estate to be converted not being of so general and indefinite a nature as personal property, there will not be in this consideration the same difficulties as in the preceding section.

When land is once impressed by will with the character of personalty, the person entitled to the interest of the fund arising from the produce will likewise be entitled until sale to the rents and profits, which will not therefore go to the heir'; and as a Court of Equity considers that to have been done which ought to have been done, a direction to sell a real estate with all convenient speed after the death of a testator, is primá facie a direction for an immediate sale.*

In the case of Casamajor v. Strode", W.S. devised real estate to trustees upon trust, "as soon as conveniently may be after my death" to sell and dispose of the same, by public or private sale, and to stand possessed of the proceeds on certain trusts for several persons respectively for life, and after their respective deceases for their children. The decree declared that the devisees for

Edwards v. Countess of Warwick, 2 P.Wms 176.

• Yates v. Compton, 2 P.Wms. 308.

u

Fitzgerald v. Jervoise, 5 Madd, 25.

« Reg. lib. A. 1809, Aug. 17, fol. 1275, cited in note 19 Ves. 390.

life named in the will were entitled to the rents and profits of the real estates thereby devised from the death of the testator.

But where there was a direction to sell an estate with all convenient speed after the death of a tenant for life (who was in under the will), and certain legacies were bequeathed out of the produce, bearing interest from the death of the tenant for life, and the residue of the money to be invested in the purchase of public stocks or funds, or government or real securities, upon trust, to pay the interest to A. and his assigns for his life, and after his decease then over; the case was considered still stronger, and the life-interest of A. was held to commence immediately on the death of the tenant for life, notwithstanding that the estate was not sold by the trustees, and the person entitled to the interest for life was held to be entitled, (on keeping down the interest of the legacies,) to the perception of the rents and profits until a sale could be made: here, indeed, the circumstances were evidence that such was the actual intention; for as the testatrix did not contemplate that intermediate rents would arise, she directed interest on the legacies from the death of the tenant for life to be paid, not out of the rents, but out of the trust-monies; and it was a reasonable inference, that, as those, who were intended to take interests for life in part of the produce of the sale, took expressly from the death of the tenant for life, the testatrix must therefore have intended that A., who took for life the interest of the residue of the produce of the sale, should take equally from the death of the tenant for life.

X

It must, however, be remarked, that in this case, if it

* Fitzgerald v. Jervoise, 5 Madd, 25.

E