Thus did land, by a slow and gradual process, become generally convertible by will into personalty for an equitable administration of the testator's debts. It is not within the scope of the present treatise to enter into the various questions that might arise, with regard to the validity of the sale of lands, when made under certain circumstances by executors, or to attempt an investigation of the constructive means by which their power to sell may be constituted, or under what circumstances that power may or may not survive, &c.; the object of that part of the present work relating to the conversion of real estate into personal, is rather with reference to that part of the land if unsold, or of the produce of it, if sold, which in the event has not been required for the purposes originally specified. It might be proper, here, however, to remark, that in order to make the various means before mentioned of converting property, effectual, it is essential that the direction to convert be positive and explicit, that the will, if it be by will, or the deed, if it be by contract, decisively and definitively fix upon the money the quality of land." If, then, the character of the property be no longer doubtful, and it no longer remains ad arbitrium, whether the quality of personalty be imperatively and definitively fixed upon realty, and vice versa, equity will consider the one or the other as that species of property into which it is directed to be converted; for it is upon this circumstance that all the decisions are grounded.i g Symons v. Rutter, 2 Vern. 227. Guidot v. Guidot, 3 Atk. 255. Walker v. Denne, 2 Ves. jun. 170. Curling v. May, cited in i Ibid. But although, in the conversion of personalty into real estate, the direction to lay out money in land be not so explicit as to give it absolutely the qualities of real estate, yet if in the deed there be the limitation of a place, as a county or parish, such a circumstance will unquestionably be considered sufficient to afford evidence of an intention to impress the fund with real qualities, and clothe it with real uses, the moment the deed is executed.* And it has been held, where money is, after the request of husband and wife, to be laid out in land to be settled in strict settlement, with power for the husband to jointure, that, as the limitations are strictly applicable to real estate, the words after request seem intended more to ensure the act being done when the request is made, than to prevent it until made; and, therefore, the fund, though not invested in land at the death of the husband and wife, nor any application for that purpose made by them to the trustees, will be considered as land and not money. And even if the circumstance of the limitation as applicable to real estate, had been wanting, it would appear, that the trust-fund would equally have been considered as stamped with real uses." Nor is it absolutely necessary that the conversion of personalty into realty be effected within the time specified for that purpose, as a court of equity will dispense with that circumstance; yet it is the duty of the trustees to call on the parties to lay out the money, and * Wheldale v. Partridge, 8 Ves. 237. make the purchase"; and even if the consent of the parties interested in the purchase is not, in consequence of their death, or by any other means, to be obtained, yet still the injunction to lay out the money will not be the less binding on the trustees; for as it ought to have been laid out, so it shall be considered as actually invested in a purchase; and as the money is to be laid out in the purchase of lands, it is not sufficient that a trustee deposit it in the hands of his banker, but he must actually make it productive; for if it had been disposed of in lands there would, at least, have been the rent of the lands, and no one should suffer from the laches of the trustee. But there is no objection why, although money is directed to be laid out in land, there should not appear an intention that, until the money is laid out, it shall be considered as unconverted, and follow the course of personal estate'; and where money is directed to be laid out in land, or invested in government or other securities, if the court finds it in the state of personalty it will be decreed as such'; but if any part of it has been once invested in land which has been sold, and the purchase money re-invested in stock, that stock will be considered as real estate, and not personal.' When, however, money is directed to be laid out in the purchase of lands or very long terms of years, the Crown has no equity on a failure of heirs to insist that n Kentish v. Newman, P. Wms. 234. Lechmere v. Carlisle, 3P. Wms. 215. S. C. Forr. 80. • Symons v. Rutter, 2 Vern. 226. Lechmere v. Carlisle, ut supra. Scudamore v. Scudamore, Pre. in Cha. 543. P Young v. Combe, 4 Ves. 101. Swann v. Fonnereau, 3 Ves. 41. • Bristow v. Warde, 2 Ves. jun. 336. с Stamper v. Millar, 3 Atk. 211. the money should be laid out in freeholds, in order to claim it for the escheat'; and it would likewise appear, by the language of Lord Loughborough in the same case, that it would be a great stretch even if that circumstance of the option (to lay out the money either in freeholds or leaseholds) were wanting, for a court of equity to convert it, in order to give it to the Crown ; nor, where such option is given, will the trustee have any claim on failure of the right heir of the cestuique trust; and it would likewise seem, that, upon the doctrine of Burgess v. Wheate", if there was no option, the trustee would have considerable difficulty in substantiating his claim to the property, as being in the possession of the legal estate, and no person being in existence who could call for the execution of the trusts. But when by a will, personalty is directed to be invested in the funds, or converted into land for the benefit of a charity at the option of the trustees, it must be observed, that as the fund cannot, on account of the statute of Mortmain, be laid out in land, no option to the trustees can possibly arise, and they will, therefore, be compelled to invest the money in the funds; and, indeed, as we shall see hereafter, unless the power to invest in the funds be given, the disposition of the testator will be totally void. There may be likewise a species of conversion which is not absolute, but relative, depending either upon the option of the owner w or upon certain contingencies, on the event of which it will take effect: t Walker v. Denne, 2 Ves. jun. 170. ▾ Walker v. Denne, 2 Ves. jun. 170. u 1 Eden, 177. Soresby v. Hollings, cited 3 Ves 50., et vide Curtis v. Hutton, 14 Ves. 539. " Amler v. Amler, 3 Ves. 583. as money to be laid out in land in a certain district, and till land be procured, the property to be dealt with as money, and if in the intermediate time certain events happen, the money then to be paid over as such.* So, likewise, in the conversion of real estate into personal, there may be such a conversion as may depend on a contingency not in the option of the owner, nor taking place even during his life, and the property then will not be taken as of the nature it was at the time of the contract or deed, but of such as it was intended to be, on the happening of the contingency. As where' A. made a lease to B. for seven years, and on the lease was indorsed an agreement, that if B. should choose within a limited time to purchase the inheritance of the premises for 3000l. A. would convey them to him for that sum. B. assigned to C. the lease and the benefit of this agreement. A. died, and by will gave all his real estate (generally) to D., and all his personal estate to E. and D. equally. Within the limited time, but after the death of A., C. claimed the benefit of the agreement from D., who accordingly conveyed the premises to C. for 30007.: although it was urged that the testator had declared no intention, but it was left to the choice of D., and according to this construction, a simple contract creditor might wait twenty years to know whether there were any assets or not; and likewise that B. and D. might come to an agreement, that D. should release to B. his power of election for 1007. or any other sum, and no one could prevent it; yet the Master of the Rolls considered, that as it was clear × Wheldale v. Partridge, ubi supra. y Lawes v. Bennett, 1 Cox. Ca. Cha. 167. |