settled by the authorities, that in each particular case the court must form its conclusion upon that point from the whole will (u).

Where a testatrix, after devising her freehold and copyhold estates to trustees for sale, used the following expression: "I will and direct, that the monies to arise from such sale be considered and taken as part of my personal estate;" and in a subsequent part of the will used these words, " And I do hereby will and direct, that out of the monies to arise by such sale, and out of all other my personal estate, the several legacies hereinafter mentioned, be paid and satisfied." And the residuary clause in her will began as follows: “And all the residue of my personal estate, and of the monies arising from the sale of my real estates I give and bequeath," &c. &c. Some of the legatees having died in the testatrix's lifetime, on a question whether the real estate was absolutely converted into personalty, so that lapsed legacies fell into the residue, or whether the conversion was partial only, so that such legacies belonged to the heir; Sir John Leach, V. C., said, "The two first passages purported an intention that the monies should be considered as of personal estate at her death; but the latter passage pointed the other way; and it was only from deference to the cases of Durour v. Motteux (v), and Mallabar v. Mallabar (w), that his Honour arrived at the conclusion, that the testatrix had in her view the improbable intention that the monies arising from the sale of her real estate should, for purposes not foreseen by her, have the same qualities as if at her death they had been part of her personal estate.' But Lord Brougham, upon appeal, decided in favour of the heir (x).

(u) Jessopp v. Watson, 1 Mylne & K. 665; Phillips v. Phillips, Id. 659.

(v) 1 Ves. sen. 320; 1 Sim. & Stu. 292 n.; ante, p. 216. See 1 Mylne & K. 661.

(w) Ca. temp. Talbot, 78. See 1 Mylne & K. 659.

(x) Amphlett v. Parke, 1 Sim.

275; S. C. 4 Russ. 75; 1 Mylne & K. 660 n. (a). There was an appeal to the House of Lords in this case, but before it was heard, the heir and residuary legatee compromised the matter by dividing the fund in question between them.— See 1 Mylne & K. 653, note (a).

Where a testator devised his freehold and copyhold estates to his executors, upon trust for sale, and declared his will to be, that the monies which should arise from the sale of his freehold and copyhold estates, should be deemed to be part of his personal estate; and that the rents and profits of his said estates until sale, should after his decease be deemed part of the annual income of his personal estate, and should be subject to the dispositions thereinafter made concerning his personal estate, and the income thereof. And touching the produce of his freehold and copyhold estates, goods, chattels, stock in trade, debts, and all other his personal estates whatever, he directed his executors to convert the whole into money, and pay thereout all his debts, funeral expenses and legacies; and the residue and remainder of his personal estate and of the produce of his freehold and copyhold estates, when converted into money, he gave in equal shares to five persons named: one fifth share having lapsed by the death of one of the legatees, it was held by Sir John Leach, M. R., that the property was absolutely converted, and that the testator's heir-at-law was excluded from any share of the residuary estate, by the next of kin (y).

Where real estates were devised to three trustees, and the produce thereof, together with his personal estate, directed to be applied in payment of his debts and legacies, and amongst others of several charitable legacies, and the residue of the monies which should remain in the hands of his trustees, who were also named his executors, after full satisfaction and discharge of the aforesaid several payments and bequests, was directed to be divided between certain persons described in his will. It was contended, that the heirat-law was entitled to so much of the legacies as would have fallen upon the produce of the real estate but Sir John Leach, M. R., upon the authority of Durour v. Motteux (z) held, that the failure of the charitable bequests enured to

(y) Phillips v. Phillips, 1 Mylne & K. 649.

(z) Ante, p.

216.

the benefit of the residuary legatees, and that no distinction could be made between that part of the residue which had arisen from the real estate, and that part which had arisen from the personal estate (a).

It follows as a consequence, from the principle in equity, that what is agreed to be done is, to many intents, considered as done; that money, agreed or directed to be laid out in the purchase of land, is for many purposes considered as real estate; but this rule will not apply if the special purpose for which the conversion is directed to be made, fail (b).

Therefore where legacies are directed to be laid out in the purchase of land for the use of particular charities, which are void, the court will not declare them void as to the charity, and good as to the purchase of land, nor direct a purchase to be made for the purpose of giving a resulting trust to the heir-at-law, but the bequest is treated as totally void, as if it had not been inserted in the will; for the trust must take effect according to the whole intent or not at all; and it was said by the court, as all money arising from the sale of real estate was still accounted of that quality, so lands to be purchased with personal estate were still to be considered as part of the personal estate (c).

4. Release from next of kin not presumed.] In a case where there were no circumstances to raise a presumption that the next of kin had released their right to a residue given to charitable uses, void by the statute of mortmain, a decree was made in their favour thirty-five years after the testator's death; not, however, on the ground that a presumption will not be made in favour of a charity, where the facts will war

(a) Green v. Jackson, 5 Russ. 35. (b) Cruse v. Barley, 3 P. Wms. 20; Mallabar v. Mallabar, Cas. temp. Talb. 79; Robinson v. Taylor, 2 Br. C. C. 589; Spink v. Lewis, 3 Br. C. C. 355; Walker v. Denne, 2 Ves. jun. 170.

See

1 Fonbl. Eq. 420-422; 1 Sand. on Uses, pp. 298-304, 4th ed.

(c) Mogg v. Hodges, 1 Cox, 9; S. C. 2 Ves. sen. 52; 1 Coll. Jur. 442. See Chapman v. Brown, 6 Ves. 404; ante, p. 201.

rant it. Thus a testator, having died in 1757, and by his will and a codicil thereto given the residue of his personal estate, consisting partly of mortgages on real estates, to trustees for such charitable uses as they should think fit, who conceiving that it was applicable to such purposes, applied the interest and part of the principal in erecting a charity-school; and, in 1792, one of the next of the kin of the testator filed a bill, for the purpose of having it declared that the disposition of so much of the testator's estate as consisted of real securities was void, and for a distribution of it. It was referred to the Master, to take an account of the testator's personal estate; to distinguish such part as was secured by mortgage or other securities, at his decease; to inquire who then were his next of kin, their ages, and where they resided, and who were their personal representatives; and whether any part of the testator's estate had been applied in the charities directed by the will and codicil; and whether the next of kin had any notice of the will, and when first, and whether they received their legacies under it; and whether they or any of them released or relinquished, in any manner, their shares of the residue (b).

Upon the Master's report, the special circumstances affording no presumption of a release by the next of kin, and an issue having been declined, it was declared, that the plaintiffs were entitled to such part of the personal estate of the testator as existed upon real securities at the time of his death, with interest from the time of filing the bill, the costs to come out of the general fund (c).

Mortgage securities, forming part of a residue given to charitable uses, will be decreed to the next of kin, although one of them had disclaimed having any interest in the residue, and being desirous of having the charitable bequests established, had assigned all her interest in the mortgages and such residue to the trustees of the charity for the benefit of it (d).

(b) Pickering v. Lord Stamford, 4 332, 492. Br. C. C. 214.

(d) Attorney General v. Earl of (c) S. C. 2 Ves. jun. 581; Ves. Winchelsea, 3 Br. C. C. 376, 381.

A case is mentioned in the Attorney General v. Graves (e), in which it is said, as there was an agreement with the heir-at-law, there was nothing for the consideration of the court on the question of a charity; for if an heir-at-law will confirm a devise of land to charity, the court will not take it away, for it becomes the act and deed of the heir; but in order to make a confirmation by the heir effectual, it is conceived, that the requisites of the statute 9 George II. c. 36, must be complied with, and that the conveyance or confirmation by the heir would be void, unless he lived twelve months after its execution; his act must be taken as the original gift, and subject to the same rules as any other conveyance to charitable uses.

SECTION VII.

Assets not marshalled in favour of Charities.

1. Decisions as to marshalling assets in cases of Charities, p. 227.

2. As to the apportionment of a mixed fund for the payment of Debts and charitable and other Legacies, p. 234.

It is a general principle of equity, that if a claimant has two funds to which he may resort, a person having an interest in one only, has a right to compel the former to resort to the other; if that is necessary for the satisfaction of both (f). This principle is not confined to the administration of the estate of a person deceased, but applies wherever the election of the party having two funds, will disappoint the claimant having the single fund; and accordingly, a court of equity will, if necessary, control that election, and compel the one to resort to that fund, which the other cannot (f) Aldrich v. Cooper, 8 Ves. 388.

(e) Ambl. 157.