1844.-Bunnett v. Foster. The testator died in 1792, his niece in 1814, and Mrs. Le Fevre in 1836. No child of Mrs. Le Fevre, or of any of the brothers or sisters of the testator was living at Mrs. Le Fevre's death. This was a bill filed, by one of the legal personal representatives of the next of kin of the testator living at his death, against two persons, each of whom claimed to be heir at law, the trustees, and a party claiming to be next of kin of a child of one of the testator's sisters, praying for the administration of the testator's property. Two questions were raised on the pleadings, first, whether there was a conversion of the realty into personalty, out and out, so as to entitle the next of kin to the whole of the assets, the greater part of which had, in fact, been converted into money since the testator's death. Secondly, whether, under the limitation to the testator's brothers' and sisters' children living at Mrs. Le Fevre's death, or their respective executors and administrators, the next of kin of a child who died in Mrs. Le Fevre's lifetime might not take by substitution. Inquiries were directed at the original hearing, and by the report it appeared, that the next of kin of the testator living at his death were ten in number that all of them were dead, and that there were legal personal representatives of three only, the plaintiff being one of such representatives. It [*542] also appeared that the next of kin of the children of brothers and sisters of the testator interested in the second question exceeded thirty in number, and that there were personal representatives of a very few of them. The cause now coming on for further directions, Mr. De Gex, for the plaintiff. Mr. Roupell, for the trustees, submitted that they would not be indemnified, by a decree pronounced in the absence of any of the parties interested in the questions in dispute. Mr. Kindersley and Mr. Borrett, for the heir at law. Mr. G. Turner, Mr. Elmsley, and Mr. Bird, for other parties, 1844.-Bunnett v. Foster. submitted that all the different interests were as well represented as convenience and the practicability of carrying on the suit would allow, having regard to the number of parties and the amount of the property. They cited Harvey v. Harvey.(a) Mr. Roupell, in reply, said, that in Harvey v. Harvey there was no final decision or distribution of the fund, as was sought here. THE MASTER OF THE ROLLS said, that the practice of allowing some members of a class to represent the whole in certain cases had been adopted on grounds of convenience, but that in this respect every case must be governed by its own circumstan ces. That it would nevertheless be extremely unsatis[*543] factory to a party, *whose property had in his absence been adjudged to another, to be told that it had been done for the sake of convenience. The other questions in dispute might, however, be argued, the decision on the question of parties being reserved. The case then proceeded. On the question of conversion, Cruse v. Barley,(b) Fletcher v. Ashburner,(c) Phillips v. Phillips, (d) and Jessopp v. Watson,(e) were cited. Mr. Bird, on behalf of the next of kin of the child of one of the testator's sisters, admitted that the claim to take by substitution could not be sustained. THE MASTER OF THE ROLLS observed, that the latter point was so clear that there could be no ground for bringing before the court any of the other parties interested in maintaining it; that the question of conversion might admit of more argument, but still there appeared to him no sufficient reason for holding that the testator intended a conversion out and out. That, unfor (a) 4 Beav. 215, and 5 Beav. 134. (b) 3 P. W. 20. (e) 1 Brown, (C. C.) 497. (d) 1 My. & K. 649. 1844.-Bunnett v. Foster. tunately, this was a very vague expression ;[1] hut that the case of the heir at law did not require it to be laid down, as ha i been contended, that there could, in no case, be a conversion except for the purposes of an express trust. That it was sufficient to say that there did not appear to be any indication of an intention to convert the property for any other purposes than those specifically pointed out, and which had failed.[2] That if his [1] As to the meaning of the phrase "out and out," in this connexion, see Matson v. Swift, quoted in the next note.. [2] One John Swift being indebted in various ways, to several persons, conveyed certain estates in trust to dispose of the same for the payment of debts; and "on trust to pay the surplus, if any, of the trust money so to be raised, unto Swift, his executors, administrators and assigns, and that without any claim or equity there. on, by or in favor of the heir or real representatives of Swift, whether the same, notwithstanding that the said trust estate or any part thereof should or might remain unconverted at the time of his decease." The estates having been sold after his death, it was held that the property was not so impressed with the character of personalty as to entitle the Crown to probate duty on the proceeds as in the case of personal estate. Matson v. Swift, 8 Beav. 368. (And see accord. Custance v. Bradshaw, 4 Hare, 315.) The case is more particularly interesting from the valuable observations it contains, of Lord Langdale, in regard to the doctrine of con version. He says, p. 374, et seq. "A conveyance by the owner of real estate, on trust to sell it for a particular purpose, as the payinent of debts, with a direction to pay any surplus of the purchase money to the owner, his executors, administra. tors and assigns, may have, and often has the effect of inducing this court to apply to the property in whatever state it may be found, the rules of distribution which are commonly applicable to personal estate only In the cases where this is done, the owner is, in figurative language, said to have impressed upon his real estate the character of personalty, or to have converted, out and out, the realty into personalty. This language is used, and the court has occasion to apply the rules of distribution in the manner I have noticed, only in cases where there has been no actual conversion by the owner; and it is important to observe, that such application of those rules of distribution is effected only by executing trusts, expressed or implied, which the court enforces against all persons having any legal estate interfering with the apparent intentions of the owner of the property, or opposed to the rights which he meant to confer.-After such a conveyance an equity in the land remains with the owner, and after satisfying the pecuniary claims which he has rendered obligatory, either by other means, or out of the land itself, he may require the trustees to reconvey to him, either the whole estate or any surplus of it; and even without con. veyance, he may, by declarations which have been called “slight,” take from the property that personal character which was said to have been impressed upon it, and establish his right to it in its actually existing character of land or real estate. If he does not at all intervene, and no sale is made in his lifetime, then, at the time of his death, this court has jurisdiction to give effect to his apparent intention, and 1844.-Bunnett v. Foster. [544] Lordship entertained any reasonable degree of doubt *on the point, he should have felt great difficulty in finally will, for that purpose consider the person in whom the legal estate is vested (whether trustee created by the deed or entitled by descent,) as a trustee for that purpose, but not for any other purpose: so that if there be not, by the deed, by devise, or otherwise, an apparent intent to take the surplus from the heir, the heir will, in equity, be held entitled to the surplus, though it may have actually been converted into money by the trustees, in making sales pursuant to the trusts, and for the purpose of answering the intention really appearing. The cases, in which the actual conversion into money, under a deed, does not deprive the heir of his title by descent, show the great difference between an actual conversion, and that which has been in equity called a conversion out and out.' That expression is strictly applicable to a conversion which the court has jurisdiction to make and will make, only by enforcing equities and executing trusts, which it declares or imputes, for the purpose of carrying into effect the intentions expressed or implied of the owner of the land. In the cases supposed, the real estate is not in fact altered at the time of the owner's death, and equity considers not what might have been done, but what ought to be done, and will declare or act upon the trusts which are required for the purpose of making the actual conversion, at the instance only of those who show themselves entitled to the benefit of such trusts. In the present case, an actual conversion was required and has accordingly been made since the testator's death; and I am of opinion that the Crown is not entitled to any benefit from the conversion so made, and that the interest of the deceased in the property was not subject to probate duty, because, in fact, the interest of the deceased existed in the form of an equitable interest in land of inheritance, and not in the form of personal estate, in which form alone the administration of it could be granted." In the case just extracted from, the trust for conversion was created by deed. Cases affecting the subject have more commonly arisen under wills; and the questions have been, who was entitled to real estate which was the subject of conversion, in case no conversion took place: and, when there has been an actual conversion, but the object for which the conversion was directed could not be carried into effect, either as being illegal, or for other reasons; or where from some of the objects of the trust having failed, cr from the fund raised by the conversion being more than sufficient to meet the charges upon it, a surplus remained undisposed of, whether the heir or the personal representative was the party entitled to the whole, or as the case might be, the unexhausted surplus of such fund. As long as the real estate con. tinues undisposed of, the legal title is vested in the trustees named by the testator, or, in the heir at law, subject to the trusts of the will; but if no conversion can take place, or ought to take place, it follows that, the trust failing, the heir takes the property unaffected by the trust, and if he be not himself the trustee may call upon the trustees for a conveyance of the legal estate. It is however obvious, that the testator may make such disposition of his estate as to preclude the heir from any contingent advantage arising from the failure of a trust. The principles just stated applying, as will be seen by the authorities cited infra, to the case of an actual conversion, it follows, a fortiori, that they must apply to cases where there has been 1844.-Bunnett v. Foster. disposing of it, adversely to the absent parties, and in distributing the property without reserving to them an opportunity of sup or can be no conversion. See Matson v. Swift, ubi supra; Custance v. Bradshaw, 4 Hare, 322. The rules applicable to the subject, are clearly and comprehensively stated in the two following extracts. "The several cases upon this subject seem to depend upon this question, whether the testator meant to give the produce of real estate, the quality of personalty to all intents, or only so far as respected the particular purposes of the will; for unless the testator has sufficiently declared his intention, not only that the realty should be converted into personalty, for the purposes of the will, but further, that the produce of the real estate shall be taken as personalty, whether such purposes take effect or not, so much of the real estate or the produce thereof, as is not effectually disposed of by the will, at the time of the testator's death, (whether from the silence, or the inefficacy of the will itself, or from subsequent lapse,) will result to the heir." Mr. Cox's note to Cruse v. Barley, 3 P. Wms 20. And in Johnson v. Woods, 2 Beav. 412, Lord Langdale says: "I apprehend it to be clearly settled, that where a testator devises land to be sold, and directs the produce of the sale to be applied to purposes which do not exhaust the whole beneficial interest, the interest which is not exhausted belongs to the heir. Moreover, it is a rule, that the heir is not to be excluded by the fact of an actual conversion of the real estate into money, but only by the disposition which the testator has made of the money which constitutes the unexhausted beneficial interest. So, where a testator, having devised his real estate to be sold, has mixed the produce with the personal estate, and has given the combined fund for purposes which do not exhaust the whole beneficial interest, in that case again, so much of the fund remaining undisposed of, or unexhausted, as consists of the produce of the real estate, belongs to the heir. It is undoubtedly practicable for a testator to say, that his real estate shall be sold, and that the produce shall go to such persons as by law are entitled to his personal estate; not only may a testator say that directly, but he may use expressions in his will which, without directly stating it, lead to the same conclusion. When therefore it can be ascertained that the testator intended that the produce of his real estate should to all intents and purposes, be treated as personal estate possessed by him at the time of his death, so as to devolve upon the persons entitled to his personal estate, the court will give effect to that intention; and in all cases of this description, the question is, whether that intention is directly expressed, or must be necessarily inferred from the words used in the will." See farther in regard to conversion, Roberts v. Walker, 1 Russ. & M. 752; Amphlett v. Parke, 2 Russ. & M. 221 : Eyre v. Marsden, 4 Myl. & Cr. 231 ; S. C. 2 Keen, 564; Watson v. Hayes, 5 Myl. & Cr. 125; Craig v. Leslie, 3 Wheat. 363 ; Hawley v. James, 7 Paige, 213; Wood v. Cone, id. 472; Gott v. Cooke, id. 521; Bogert v. Hertell, 4 Hill, 492; S. C. 9 Paige, 52, 3 Edw. Ch. 20; King v. Strong, 9 Paige, 98; Salt v. Chattaway, 3 Beav. 576; Houghton v. Houghton, 11 Sim. 491; Wright v. Trustees of the Methodist Episcopal Church, 1 Hoff. Ch Rep. 221. But when a testator directs his personal estate to be converted into real estate for several purposes, some of which fail, the heir is not, after satisfying the purposes which can take effect, entitled to the personalty as being impressed with the character of realty. Hereford v. Ravenhill, 1 Beav. 481. |