only covenanted to be paid; whether the land is actually conveyed or only agreed to be conveyed; the owner of the fund or the contracting parties may make land money, or money land." And it is likewise immaterial whether the money intended to be converted be deposited in the hands of trustees to be invested, whether there is no such deposit, but a man covenants to lay out so much money in land and settle it, or whether it is neither in the hands of trustees, nor secured by covenant, there is no difference in reason, for the nature of the thing is changed by the agreement, of which it is the business of a court of equity to enforce the execution. b These, then, are the means by which in the eye of equity the absolute owners of property may effectuate that conversion which gives to realty the character of personalty, and to personalty the character of realty; but as the conversion, by will, of real estate into personal for the purpose of an equitable administration of the testator's debts was not at first very readily allowed, it may not, perhaps, be considered as irrelevant to our subject in the present place to deduce the mode by which real estate gradually became convertible by will into equitable assets. A testator desirous of converting his real estate into equitable assets for the payment of debts, devises it either to a trustee solely, or to a trustee who is also executor, or creates a charge upon it; all these means. are equally efficient, as every devise of lands for payment of debts by which the descent is broken, or even intended to be broken, or by which a quantum of interest, which otherwise would have gone to the heir, b Lechmere v. Carlisle, 3 P. Wms. 211. S. C. Forr. 80. is withdrawn from the mass, is a conversion of land into equitable assets. Prior to the statute of fraudulent devises, where a devise was made to trustees not likewise executors, for the payment of debts generally, as the money never came into the hands of the executors no action lay, and it was therefore necessary that creditors should come into a court of equity for satisfaction of their debts: such a devise, therefore, for payment of debts coming under the cognisance of equitable jurisdiction, which was not tied down by any rule of law, a new method of administration was introduced upon the grounds of justice, and the principles of equality, all debts being in conscience of equal importance; and, therefore, as the testator had made no distinction between his specialty and simple contract debts, but had devised his real estate for the payment of his debts generally, equity would not make that distinction which the testator himself had not made. Nor could this equitable proceeding have caused the least injustice to the specialty creditors, for at that time the testator might have defeated his creditors' claims by devise, or if the lands had descended to the heir, the heir might equally have defeated them by alienation. Hence we find, that in the case of Wolestoncroft v. Long, it was declared to be the constant practice, that all the debts should be paid in proportion, and that if the lands were not sufficient to pay all, all should lose in proportion; and so, also, it was subsequently declared, that when a man settles his lands for payment of his debts generally, all his creditors are equally concerned and entitled, and none is to be preferred before another; and c 1 Cha. Ca. 32. debts without specialty are equally to be regarded as debts by specialty. “ d This equality of claims was as much the general wish of mankind, as it had been the established doctrine of courts of equity; for although by the statute of fraudulent devises, which has been called a parliamentary approbation of equitable assets, it is enacted that "all wills or testaments, limitations, dispositions, or appointments of lands or tenements, &c., "whereof any persons, at the time of their decease, "shall be seised in fee-simple in possession, reversion, "or remainder, or have power to dispose of the same by their last wills, shall be deemed and taken (only "as against creditors by bond or specialty binding the 66 66 66 heir) to be fraudulent and void; and every such "creditor shall have his action of debt, upon his and "their bonds and specialties, against the heir at law of "such obligors, and such devisees jointly," yet the proviso operates by way of exception upon devises for the payment of debts, and excepts such devises out of the act, and places them in the same situation as before the passing of the act. "Provided always, that "where there hath been or shall be any limitation or "disposition of lands or tenements, for the raising or "payment of just debts or portions for children, other "than the heir at law, in pursuance of any marriage"contract or agreement in writing bona fide made "before such marriage, the same and every of them "shall be in full force." d Anonymous case, 2 Cha. Ca. 54. e 3 & 4 W. & M. c. 14., made perpetual by 6 & 7 W. 3. c. 14. f Silk v. Prime, cited in 1 Bro. C. C. 138. (n.) So that at length where the trustee was not executor it was determined, as well upon the principles of equity as upon the sanction of the legislature, that a devise of lands to him for payment of debts should constitute equitable assets. But this equitable administration of assets was not so readily obtained, where the testator had united in the same person the offices of trustee and executor. It is laid down in Co. Litt. 113 a, that whether there is a bare trust given to the executors, or a trust coupled with an interest, in both cases the executors may sell for payment of the testator's debts; and although the value of the land could not be given in evidence, as assets at law in the executors' hands, it was formerly decided that lands in the hands of executors were legal assets, and consequently that all debts must be paid in a course of administration. In the case of Girling v. Lee, it is said, that if the devisee of the lands in trust for payment of debts be also made executor, then do the lands so devised become legal assets, and the debts must be paid according to their precedency or superiority at common law this was followed by many other cases upon the same grounds; the authorities, indeed, were so uniform as almost to destroy the equitable distribution of assets aimed at by courts of equity; but, however, at length the real estate devised under such circumstances was regarded in equity merely as a trustfund, and consequently subject to an equal distribution among the creditors; for in an early case where the i k h 1 Vern. 63. Hawker v. Buckland, 2 Vern. 106. i Anonymous, 2 Vern. 133. Greaves v. Powell, 2 Vern: 248. Cutterback v. Smith, Pre. Cha. 127. Bickham v. Freeman, Pre. Cha. 136. k Challis v. Casborn, Pre. Cha. 407. devisees of the real and personal estate were made executors, on its being stated by counsel to be a settled distinction in equity that they ought to apply the estate in such case in a course of administration, because, if the estate were sold, it would be personal assets in their hands, and then to pay a debt of an inferior nature before one of a superior would be a devastavit, the Lord Chancellor thought the accident of their being executors ought not in equity to make any difference, but that all the creditors should be considered equally. And again in the case of Lewin v. Okeley', where there was a devise to trustees for the payment of debts, and the same persons were made executors, the court said, the assets should, notwithstanding, be equitable, and not legal, and all the creditors should be paid pari passu; so that the old rule, where the trustees and executors were the same persons, was by these equitable decisions completely subverted, and even if the executors take but a bare power, equity will administer the assets equally, for it is immaterial, as we shall see hereafter, whether the descent be broken or not, and it is the wish of a court of equity that the division shall be made pari passu; nor will there be any difference in the construction when the lands are devised to the executors and their heirs, for, as Lord Camden says", the case will be the same whether the land is devised to them, or to them and their heirs, for in both cases they are equitable trustees. The descent is broken, and the specialty creditors have lost their fund; nor is it reasonable to suppose that a man who does repeatedly 1 2 Atk. 50. m Newton v. Bennet, 1 Bro. C. C. 134. Barker v. Boucher, citer' in note (ibid.). n Silk v. Prime, cited 1 Bro. C.C. 138. n. |