that, as to the surplus of the money to be raised by the sale of the land, that devise was but in the nature of a mortgage or security, and that the heir paying those legacies might have the land, though he had a particular legacy thereout.

And if there is a necessity that the executors should sell the lands, they will be considered as trustees for the heir at law of this undisposed-of surplus. As, where P. S. devised lands to his executors and their heirs, in trust to be sold by them for the best price, and with the money to pay his debts, legacies, &c., and amongst the legacies he gave one to each of his co-heirs; the Lord Chancellor held, that though there were express legacies given to the heirs at law, and none to the executors, yet, the will being that the executors should sell the estate for the best price that they could get for the same, the devisees were never intended to be the owners; and they were, therefore, held to account for the surplus to the heirs at law; for when an estate is devised to trustees, in trust to sell and pay debts, &c., and no disposition is made of the residue, the benefit of the residue descends to the heir at law, because the devise is also taken to be simply a charge, and the estate so far remains real, notwithstanding; the beneficial interest goes to the heir, and the trustees are trustees for him, subject to the charges imposed on the estate by the will; and the heir may redeem by paying those charges, and prevent a sale.

And where a testatrix devised her real estate to be sold, and all her estate to be converted into money, which " I give and devise as follows," she then gave several legacies; the purposes of the will were all satisfied, without having recourse to the real estate, which was not sold; the next of kin claimed against the heir, but as no purpose remained for which the real estate should be converted, it was decreed to go to the heir as land.

And likewise the produce of part of a rent-charge undisposed of will equally result to the heir at law. As, where one devised a rent-charge to be sold to pay legacies, amounting to 800l.; and if the rent-charge should sell for 1000l. he gave a further legacy of 2001. The rent-charge was considered worth more than 800l., and less than 1000l., and this excess above the 800l. was held to be a resulting trust for the heir at law. And if the lands are devised to be sold for the payment of debts, in aid of the personal estate, in the event of the personal estate being sufficient to discharge the debts, the heir at law will take the lands as unsold. "

t

Nor will the case be altered where the conversion is formed out of the residuary real estate; every devise of real estate, though in form residuary, being specific. As where a testator, after several legacies, gave all the rest, residue, and remainder of his real and personal estate, to his executors, to sell and dispose of his houses and lands to the best advantage, and for the most money, and to place the money arising therefrom, as well as the rents and profits thereof, in the meantime, out to interest, " upon the best security they could get for the same ; and thereout, and out of the

• Stonehouse v. Evelyn, 3 P. Wms. 252.

■ Buggins v. Yates, 9 Mod. 122.

▼ Robinson v. Taylor, 2 Bro. C.C. 589.

remaining part of my personal estate, pay B. M., during her life, an annuity, &c. And as to all the rest and residue of the money which shall be then out at interest, I do hereby order and direct, that the same shall remain out at interest, for and during the life of M. S., and in case she shall live separate and apart from her husband W. S., then and in such case I order and direct that the yearly interest arising from the said surplus-money shall be paid to her sole and separate use; but in case she shall live with her said husband, then, in such case, as therein mentioned." M. S. continued to live apart from her husband from the death of the testator until her own death; and it was urged that the testator not having disposed of the residue of his real and personal estate, (the real estate being by the will directed to be sold, and having been converted into money) it was distributable, at the death of M. S., amongst the testator's next of kin; but the Lord Chancellor said that he did not see how the personal representative could ever get at that which was not personal at the death of the testator, but by an express direction; therefore he thought the heir at law was entitled to the residue of the real estate, as a resulting fund.

Nor is it material if the testator" does not express merely that his real estate shall be sold and converted into personalty; but taking both funds, his residuary real estate and his personal estate, blends the two, and directs the whole to be turned into money by his trustees; and out of the money arising therefrom, " in the first place," to pay and reimburse themselves all reasonable and necessary costs, charges, and expences

w Hill v. Cock, 1 V. & B. 173.

H

whatsoever, which they should or might be put to, in the execution of his will, or the trust reposed in them, and does not afterwards express any ulterior purpose to exhaust the entire produce: for if there is nothing more in the expression of the purpose than the satisfaction of those expences, the money remaining unapplied, as not being required to answer the purpose, would, as far as it was derived from real estate, be considered as real, not personal, property. And although it was said, that if a testator simply directed the conversion of his real estate, expressing no purpose whatsoever, with reference to which that conversion was to be made, the inference was necessary that he had the purpose of conversion, and no other, and that using the words " in the first place," and not afterwards expressing any ulterior purpose, the next purpose must be supposed to be merely that of making the conversion; yet the Court was of opinion that, upon the construction of those words, " in the first place," it could not hold that the principle upon which, hitherto, property, in the form of personalty, had been given to the heir, should be denied in this case, and that the distinction upon these words was much too slight to take this case out of the general principle: so much, therefore, of the residue of this money as arose from real estate was to be considered as real, and to belong to the heir.

So, where there is a devise of real estate for the payment of debts, the surplus undisposed of will go to the heir at law. And where a testator devised real and personal estate to his executor, to pay his debts and legacies, the rest and residue to himself, the only purpose of devising the real estate appearing by the words, " My situation is such, that I am obliged to make a will, for if I should do otherwise than well, my heir would come in for all my lands, and my just debts would remain unpaid," to be only to ensure payment of the debts, without any intention to disinherit the heir, he was held to be entitled to the surplus of the real estate.

And where, after a devise of real and personal estate to J. F. and M. S., upon the especial trust and confidence that they should pay certain annuities, the testator added, that he appointed them executors of his last will and testament, and their heirs, executors, and administrators, upon the especial trust and confidence that they should devote all his property, both real and personal, to the payment of his just debts, and all the legacies and annuities given by him in trust to them, these executors were not to be considered otherwise than as executors in trust; and would not, therefore, exclude the heir at law from so much as was constituted of real estate, and remained undisposed of for the purposes of the will. *

Where the devise fails from inefficacy the heir at law will likewise be entitled; for whenever land, or any interest in land, which would descend to the heir at law, is devised for purposes which the law will not permit to take effect, the heir at law will have the benefit of the interest, as undisposed of, whether the testator intended he should have it or not; for the heir at law takes whatever is undisposed of, not by force of the intent, but by the rule of law. As in the case of the Attorney General v. Weymouth, where a testator devised to trustees all and every his manors, messuages, lands, tenements, and