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any of the money to arise by the sale should remain after payment of the debts and legacies, it was directed to be paid to James Flanagan the father, and James Flanagan the son, equally; and if any estate should remain unsold, the trustees were directed to convey it to them and their heirs, equally. After the decree James Flanagan the son died, leaving a daughter, and a son born after his death. Part of the estate was sold, and afterwards James Flanagan the grandfather died, leaving his grandson his heir, and his grandson and grand-daughter his sole next of kin. After the death of the grandfather, a further part of the estate was sold, under an apprehension that the produce of the first sale was insufficient to pay the debts and legacies. It appeared, however, that the produce of the first sale was sufficient. A bill was then brought by the son of James Flanagan the son, claiming a moiety of the surplus, as the real estate of James Flanagan his grandfather, to whom he was become. heir, against the personal representative of his grandfather, the daughter of James Flanagan the son, who claimed as one of the next of kin of her grandfather; it being thereby objected, that the second sale, after the death of the grandfather, was improper. The Court, however, determined that the second sale, actually made under the decree of the Court before the Master, could not be considered as improperly made; that there was no fraud, and that the money ought to go to the personal representative of the grandfather. Here the Court thought there was no equity between the representatives; that which was done under the order turned out to be clearly wrong; so much of the estate only was to be sold as would pay the

debts, but they sold the bulk for convenience of sale; and there was a surplus, which if the order had been strictly pursued would never have been money, but real estate. It happened that, by the order not being followed distinctly, or guarded sufficiently in the execution, that which would have been land was in fact money. Lord Camden, however, thought nothing arose upon that, but that the parties ought to take their respective rights as they found them.

We cannot conclude this chapter without adverting to a principle, derivable from some of the last-mentioned authorities, and which we find laid down in the books as the grounds of some of the decisions, but which does not seem to admit of a general application in the conversion of property.

It has been observed, that when, by the conversion of property, either by the committee of the estate of a lunatic, or under a decree of a court of equity, a surplus has been produced above the requisite purposes of the conversion, no equity remains for the representatives to claim this surplus in a shape different from what it was in fact. Under such circumstances, the Court is in the habit of saying, that the legal nature of the property must determine to whom it will belong; for the Court by which the property has virtually been converted cannot be considered to have acted improperly: but this principle has been sometimes approved of as the grounds of decision when the property has been converted under the direction of the actual owners thereof; for in an instance of a conversion of personal estate into real, it being remarked that the limitation to the heirs gave a real quality to the money, and that it so remained until by some act of intention its real qualities

had been removed, Lord Rosslyn answered, "that "although such an idea was commonly entertained, "yet I do not recollect any case where the heir has "said the money ought to be laid out, all the particular objects being gone, and that he as heir claimed the money as land for his own benefit. I doubt what gives the heir a title to a subpoena in court, as be"tween the heir and personal representative their

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rights are pure legal rights: chance decides what "shall be real, what personal, and they have not a "scintilla of equity to make the property that which it "is not in fact. If a testator says, I desire all my "money may be disposed of as land, it must be all "converted into real estate, and must go as such; so, "vice versa, if he desires that all his land shall be "turned into money, that is a direct trust, and the "direction would be executed by a court of equity. "I was always much struck with Lord Camden's

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opinion in Flanagan v. Flanagan: by a mistake of "this Court, land was converted into money: more "was sold than ought to have been sold; and it was " contended that the Court would rectify it, and that "the excess should be considered as land. But Lord "Camden went upon the ground, that between real "and personal representatives there was no possible equity, but they must take their rights as they find "them."

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The authorities, however, do not support an application of this principle when the conversion has been effected under the direction of the immediate owners themselves; for Lord Eldon has remarked", "I am

x 2 Ves. jun. 170.

* Wheldale v. Partridge, & Ves. 235.

"disposed to say, notwithstanding the opinion of "Lord Rosslyn and some other modern authorities, "that if an instrument is to be taken to impress a fund "with real qualities immediately upon the execution, "in the question between the heir and executor, the "money being once clearly and plainly impressed with "real uses as land, and one of those uses being for the "benefit of the heir, the impression will remain for his "benefit; and to put an end to that impression, it "must be shown, either that the money was in the "possession of a person who had in himself both the "heirs and executors, or he must do some act to de"note a change of his intention, as to the devolution "of the property upon either; and it is not correct to "say the Court does not interpose between volunteers, "if they give to the executor that money which the "instrument has given to the heir."

In the case of Thornton v. Hawley, the Master of the Rolls entirely concurred with the preceding expressions of Lord Eldon, and conceived that there was no weight in the circumstances of the property being found in the shape of money or land; and so, also, on subsequent occasions, it has been held that the property would retain the impression given it, and so pass to the representatives, even although volunteers, until there had been some expression of intention to be gathered from the person entitled to the property; and we shall, therefore, in the next instance, consider what expression of intention will be looked on as sufficient to take from the property the character it has once received by the instrument directing it to be converted.

z 10 Ves. 129.

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Biddulph v. Biddulph, 12 Ves. 161. Kirkman v. Miles, 13 Ves.

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CHAP. VIII.

RECONVERSION OF PROPERTY.

EVIDENCE OF INTENTION TO RECONVERT PROPERTY BY PERSONS ABSOLUTELY ENTITLED. MEANS PURSUED BY THOSE WHO HAVE ONLY QUALIFIED INTERESTS TO RECONVERT.—STATUTES FACILITATING THE MEANS

OF THOSE WHO HAVE QUALIFIED INTERESTS TO RECONVERT, &c.

HAVING thus attempted to trace the various consequences attendant upon property, when under that impression which is given to it in the eye of equity, in order to accomplish the owner's purpose, and having seen that such property may pass ad infinitum under an impression so given, we shall, in the present chapter, examine what act will be deemed sufficiently declarative of an intention to put an end to this impression, or, in other words, to reconvert the property, and what interest in the property will be sufficient to entitle a person to make such a declaration.

Property of this description, we have seen, generally is in a state of trust; and when it is ascertained for whose benefit the trust was created, it cannot be denied that those who are the objects of the trust have the interest in the thing which is the subject of it; and, therefore, where money is given to be laid out in land, which is to be conveyed to A., though there is no gift of the money to him, yet in equity it is his, and he may elect not to have it laid out. So, on the other hand, where land is given upon a trust to sell, and to pay the produce to A., though no interest in the land is expressly

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