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Where copyhold land was devised in fee, upon condition that the devisee within one month, would pay 20001. to his executors, to be taken as part of his personal estate, and then gave the residue of it for charitable purposes, the testator having left no customary heir, and no next of kin, it was held, that the devisee who had been admitted, took the land subject to the payment of the 20001.; that the lord of the manor was not entitled to it, because he takes only propter defectum tenentis, but that the crown took the 20001. by force of its prerogative if personal estate (u), because there was no next of kin; and if real estate, because there was no customary heir (v). But this decision was reversed on appeal (w) to Lord Brougham, who held that the devisee took the estate discharged from the legacy, which could not be raised without the aid of a court of equity, to which the crown was not entitled (x), although the costs of all parties were directed to come out of the 20001.

Where a testator directed leaseholds to be sold, and gave the produce thereof after payment of debts and legacies to the Society for the Propagation of the Gospel, the executors having been excluded from taking any beneficial interest by the legacies which were given to them, and no relations of the testator being found, it was held that the executors were as much trustees of the money arising from the sale of the leaseholds for the crown, as they would have been for the next of kin if any could have been discovered (y).

Testator after devising real estates to be sold, and giving several legacies, and two sums of 1001. each for the poor

of two parishes, all to be paid out of the monies arising from such sale, directed the residue of such monies to be invested for the benefit of two legatees, and gave the general residue of his estate both real and personal to two other legatees, the two charitable legacies of 1001. each being void by the

(u) Com. Dig. Administrator (A). jun. 169.

(c) Henchman v. Attorney General, (y) Middleton v. Spicer, 1 Br. 2 Sim. & Stu. 498.

C. C. 201. See Barclay v. Russell, (w) 5 Aug. 1834.

3 Ves. 424. I Will. IV. c. 40. (1) See Walker v. Denne, 2 Ves.

statute of 9 Geo. II. c. 36; it was held, that they sunk into the general residue not specifically bequeathed (2).

A testator made a general bequest of leasehold property, upon condition that the legatee should assign a certain leasehold estate, part of the property, to a charitable purpose. The next of kin claimed the leasehold given to the charity as the trust was void. But it was held to be the same thing as if the illegal condition had been to pay a sum of money to a charity; and it being clear in such a case that the legatee would have retained the whole leasehold property without payment of the sum of money, therefore he must retain the whole without the assignment of a part (a).

A leasehold house bequeathed specifically to trustees for a charity which failed, was held to fall into the general residue, and to pass under a general bequest of the residue of the testator's estate and effects not thereinbefore particularly disposed of, and to belong to the legatees and not to the next of kin as undisposed of (b). For a general residuary clause will pass all which is not sufficiently disposed of as in the case of lapse (c).

3. Questions between real and personal representatives in cases of conversion of real estate.] Lord Eldon declared it to be a clear rule in equity, that where real estate is directed to be converted into personal for a purpose expressed, which purpose fails, either wholly or partially; in the former case, though the estate has been converted, the whole produce of that conversion will still be real estate; and in the latter, as far as the purpose fails, so far the money is to be considered realty, and not personalty. Where a testator means with regard to a particular purpose, to convert his real estate into personal, if that purpose cannot be served, the court will not infer an intention to convert the estate for any other purpose

(6) Shanley v. Baker, 4 Ves 732.

(2) Page v. Leapingwell, 18 Ves. (c) Brown v. Higgs, 4 Ves. 708. 463.

See ante, p. 115 n. (k). (a) Poor v. Mial, 6 Madd. 32.

not expressed (d). Sir John Leach laid down the following principles as the result of the authorities upon the subject of the conversion of real estate into personal.—“Where a devisor directs his real estate to be sold, and the produce to be applied to particular purposes, and those purposes partially fail, the heir-at-law is entitled to that part of the produce, which in the events is thus undisposed of. The heir-at-law is entitled to it, because the real estate was land at the devisor's death; and this part of the produce is an interest in that land not effectually devised, and which, therefore, descends to the heir. It is for this reason, that the produce of an estate which the devisor directs to be sold, can never be strictly part of his general personal estate.

If a devisor directs such produce to be paid to his executors, and applied as part of his personal estate, the executors take it as devisees. Every person taking an interest in land directed to be sold, is in truth a devisee, and not a legatee (e). A devisor may give to his devisee either land, or the price of land, at his pleasure; and the devisee must receive it in the quality in which it is given, and cannot intercept the purpose of the devisor. If it be the purpose of the testator to give land to the devisee, the land will descend to his heir, if it be the purpose of the devisor to give the price of land to the devisee, it will like other money, be part of his personal estate. Under every will, when the question is, whether the devisee or the heir, failing the devisee, takes an interest in land as land or money, the true inquiry is, whether the devisor bas expressed a purpose, that in the events which have happened, the land shall be converted into money?" and accordingly as that question is answered, the devisee or the heir standing in his place, will take the devised interest in the quality of money, or of land (f)

Properly speaking, nothing is the personal estate of a testator that was not so at his death, although he may so express himself as to shew that something else was intended ; but where there is nothing but a direction to sell land, with an application of the money to a particular purpose, and a subsequent bequest of the rest and residue of the personal estate, there seems to be no case in which it has been held, that the surplus after the particular purpose is answered, forms part of the personal estate, so as to pass by the residuary bequest (g).

(d) Hill v. Cock, 1 Ves. & B. (e) See Pagev. Leapingwell, 18 Ves. 174, 175; Green v. Jackson, 5 Russ. 463; Gibbs v. Ougier, 12 Ves. 415. 38. On the conversion of real into () Smith v. Claxton, 4 Madd. personal estate, see 1 Rop. on Leg. 492. See Ashby v. Palmer, 1 Mer. 432—475, 3rd ed.

301.

In Durour v. Motteux (h), the testator gave all his estate consisting of a freehold and some leasehold, monies, securities, &c., upon trust to sell and dispose of all his freeholds, leaseholds, monies, &c., and all he had or might have of what kind soever, or wheresoever, and after payment of all his debts, funeral expenses, and legacies, to place out all the residue of his personal estate at interest upon government or other securities upon trust, for the benefit of the persons therein mentioned. The testator then gave several legacies, some to individuals, and the sum of 12,0001. for charitable purposes, and the remainder of his estate and the interest therein being placed out at interest in some of the funds, the testator gave for the benefit of the persons therein named, and their children. On a question whether the legacy of 12,0001. which was void under the mortmain act, should go to the heir-at-law or to the residuary legatee, Lord Hardwicke being of opinion that the money to arise by the sale of the real estate was turned into personalty by the will, and that the testator intended, by the description of all his personal estate, to include the whole in the residue, held, that the bequest of it included as well void, as lapsed legacies, and passed them to the residuary legatee. His lordship added, the case comes to this; a will is made, in which several legacies and the residue of the personal estate are given away; one of the personal legacies void by law ;

(9) Maugham v. Mason, 1 Ves. & (d). See 8 Ves. 25. See 1 Mylne & B. 416.

K. 661; Green v. Jackson, 5 Russ. (h) i Ves. sen. 320, stated from 35; post. p. 224. Reg. Book; 1 Sim. & St . 292 n.

the court cannot say for that reason, contrary to the express will, that he intended to die intestate; for giving the residue over includes every thing, whether falling in by reason of that legacy being void, or lapsing by the death of the legatee in the testator's lifetime. In Maugham v. Mason (i), Sir William Grant, M. R., said, that it was difficult to ascertain from what expressions Lord Hardwicke inferred in Durour v. Motteur, that by the description of all his personal estate, the testator meant to include every thing in the residue, but that decision is generally accounted for by the particular manner in which the sale was directed, and the circumstance of the testator's having blended together the real and personal estates in one gift to trustees to sell the whole with his personal estate, &c. (j).

Where a testator directs his real and personal estate to be converted into money, and the mixed fund to be applied to certain stated purposes, and some of those purposes fail by lapse or otherwise, questions have arisen, whether the remaining purposes, which are in their nature primary charges upon the personal estate, are to be satisfied out of that estate as far as it will extend in exoneration of the real estate for the benefit of the heir, or whether the remaining purposes are to be satisfied out of the real and personal estate pro ratâ ?

Sir John Leach, M. R., said, “ It is a question of intention ; and it must be admitted, that in order to throw upon the real estate any part of the burthen to which the personal estate is primarily liable, the intention of the testator must be manifest. When a testator creates from real and personal estate, a mixed and general fund, and directs the whole of that fund to be applied for certain stated purposes, he does in effect direct that the real and personal estates which have been converted into that fund, shall answer the stated purposes, and every of them pro ratâ, according to their respective values. If any of those purposes fail, then the part of the fund which according to the intention of the testator O i Ves. & B. 417.

post, pp. 222, 223, 224. () See Br. C. C. 500; 3 Id. 143;

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