CRAIG

v.

LESLIE ET AL.

Mr, Justice Washington delivered the opinion of the court. The incapacity of an alien to take, and to hold beneficially, a legal or equitable estate in real property, is not disputed by the counsel for the plaintiff; and it is admitted by the counsel for the state of Virginia, that this incapacity does not extend to personal estate. The only inquiry,, then,-which this court has to make is, whether the aboye clause in the will of Robert Craig, is to be construed, under all the circumstances of this case, as a bequest to Thomas Craig of personal property, or as a devise of the land itself?

. Equity con. siders land, diu> be verted into the purchase of land, ab land, Where the *>hole benefidal interest in the land in one Money in tí!e to'th'c ^person foe whose use it is given, a court of eguity ««tu? íue'íVusí the conversion W * Were this a new question, it would seem extremely difficult to raise a dou.bt respecting it. The common sense of mankind would determine, that a devise of moriey, the proceeds of land directed to be sold, isa devise of money, notwithstanding it is to arise^ out of land; and that a devise of land, which a testator by his will directs to be ( purchased,, will pass an interest in the land jtself, without regard to the -character of the fund out jf which the púrchase is to be made,.

The settled doctrine of the courts of equity corres1 J pond with this obvious construction of wills, as as of other 'instruments, whereby land is directed to be turned into money, or money into land, for benefit of those for whose use the conversion is ded to be made. In the case of Fletcher v. Ashburner, (1 Bro. Ch. Cas. 497.) the master of the rolls says, that “nothing is ’ better established than this principle, that money directed to be employed in the purchase of land, and land directed to be sold and turned into money, are to be considered as that species^ of property into which they are'directed to be converted, and this, in whatever manner the direction is given.” He adds, “the owner of the fund, or the contracting parties,' may make land money, or money ¡and. The eases establish this rule' universally.** This declaration is well warranted by the cases to» which the master of the rolls refers, as well as by many others. (See Dougherty v. Bull, 2 P. Wms. 320. Yeates v. Comptan, Id. 358. Trelawney v. Booth, 2 Atk. 307.

The principle upon which the whole of this doctrine is founded is, that a-court of equity, regarding the substance, and not the mere forms and circumstances of agreements and other instruments, considers things directed or agreed to-be done, as having been actually performed, where nothing has intervened which ought tó prevent a performance. This qualification of. the more concise and general rule, that equity considers that to be done which is agreed to' be-done, will comprehend the cases which coia¡e under this head of eTli{D

Thus, where the whole beneficial interest in the mo- . . . , ney in the one case, or in the land m the other, belongs to the person for whose use it is given, a court of equity will not compel the trustee to execute the -trust' against the wishes of the cestuy que trust, but will per-n _ .si mit him to'take the money or the land, if he elect to" do so before .the conversion has' actually been made : this election he may make, as well by acts or dec" c^earty indicating á d termination to that effeet,-'as by application to a court of equity. It is this election, and not the mere right to make it, which changes the character of the estate so as to make it real or personal, at the will of the party entitled to the beneficial interest. BUt ¡jfé«¡J^^his eUc* tion, the pro-to^ls • ifeirs' “ in the same manner as .it would have done >1 the con, version had time. If this election be not made in time to stamp the property with a character different from that which the will or other instrument gives it, the latter accompanies it, with all its legal consequences, into the hands of those entitled to it in that character. So that in case of the death of the cestuy que trust, out having determined his election, the property, will pass to his heirs or personal representatives, in the same manner as it would have done had the trust been executed, and the .conversion actually made in his life

In the case of Kirkman v. Mills, (13 Ves.) which was a devise of real estate to trustees %npon trust to sell,'and the'moneys arising, as well as the rents profits till the sale, tobe equally divided between the testators, three daughters, A. B. and C.' The estate' was, upon the death of A. B. and C., considered and treated as personal property, notwithstanding the jcestuy que trusts, after the death of the testator, had entered upon, and occupied the land for about twro years prior to their deaths; but no steps had been taken by them, or by the trustees, to sell, nor had any requisition to that-effect been made by the former to the latter. The master of the rolls was of opinion that the occupation of the land for two years was too short to presume an election. He adds, “the opinion of Lord Rósslyn, that property was to be taken as it happened to be at the death of the party frorp whom the representative claims, had been much doubted by Lord Eldon, who held, that without some act, it must be considered as be.ing in the state in which it ought to be; and that Lord Rosslyn’s rulé was new, and not according to the prior cases,

'The case of Roper v. RadI87?e’xamined.to

The same doctrinéis laid down and maintáined in the.case of Edwards v. The Countess of Warwick (2 P. Wms. 171.) which was a covenant on marriage to invest 10,000Z., part ofthe lady’s fortune, in the pur . .chase of land in fee, to be settled on the husband fo life, remainder to his first and every other son in tai male, remainder to the husband in fee. The only-son of this marriage having died without issue, and 'in testate, and the investment ofthe money not having been made during his life, the chancellor decided that the money passed to the heir at law ; tha,t it was in the election of the son to have made this, money, or to "have disposed of it as such, and that, therefore, even his parol disposition of it would have been regarded i but that something to determine the election must be done.

This doctrine, so veil established by the cases which have been referred to, and by many others' which it is unnecessary to mention, seems to be' conclu . . ,. , . , ,, . . . ., , sive Upon the question which this court is called upon decide, and would render any farther investigation ofit useless, .were it not for the case of Roper v. Radcliffe, which was cited, and mainly relied upon, the counsel for the state of Virginia.

The short statement of that case' is as follows j John Roper conveyed all his lands to trustees and their heirs, in trust, to sell the same, and out ofthe proceeds, and of the rents and profits till sale, to pay certain debts, and the overplus of the money to be paid as he, the said John Roper, by his will or other wise should appoint, and for want of such appointment for the benefit of the said John Roper, and his hqiisBy. his will reciting, the said deed, and the power reserved to him in the surplus of the said real estate, he ,bequeathed several pecuniary legacies, and then gave the residue of his real and personal est te to William Constable and Thomas Radcliffe, and two. o./iers, arid to their heirs. By a codicil to this will, he bequeathed other-pecuniary legacies; and the remainder,'whether in lands or personal estate,- he gave to the .said. W. C‘ and T. R. Upon a bill filed by W. C. and T. R. against the heir at law of John Roper, and -the other trustees, praying to have the'trust executed, and the residue of the money arising from the sale-of the'.lands to be paid over to them ; the heir at law opposed the execution tpf the trust, and claimed the land as a resulting trust,* upon the ground of the incapacity of*Constable and Radcliffe to take; théy being papists. The decrée-of ,the court of chancery, -which was in favour of the papists, was, upon appeal to the house of lords, reversed' and the title of the heir at law sustained; six judges against five, being in his favour. Without stating at large the opinion upon which the reversal took place, this court will proceed, 1st; To examine thu general principles laid down in that'opinion ; and then, 2d. The case itself, so far as it has been' pressed upon us as an authority .to rule the question be • fore the court.

In performing the first part of this undertaking, it will not be necessary to' question any one of the premises laid down. in that opinion. They are, 1. That land devised to trustees, to sell for payment of debts and legacies, is to be deemed as money. ThA is the general doctrine established by all the-cases referred to in the preceding part of this opinion. That the heir at law has a resulting trust in such so fair as it is of value, after the debts and lega- ; 7 . . cíes are paid, and that he may come into equity and restrain -the trustee from selling more than is neces- *° Pay'Uie debt and legacies ; or he may offer to them himself, and pray to have a conveyance of J . , ,. part of the land not. sold in the first case, and th® whole in the latter, which property will, in either case»1 land, and not money. This right to call for a conveyance velT correctly styled a privilege, and it one which a court of equity will never refuse, unless ' there are strong reasons for refusing it. The this doctrine, proceeds upon a principle is incontrovertible, that w'here the testator 5 merely directs the real estate to be converted into ' , . , money, for the purposes directed in his will, so much °f the estate, or the money arising from it, as .is not efEectually disposed of by the will, (whether it arise from some omission or defect in the will ilself, or . from any subsequent accident, which prevents the devise from taking effect,) results to the heir at law, as the old use not disnosed of. Such was the case of Crewe v. Bailey, (3 P. Wms. 20.) where the testator having two sons, A. and B. Qand three daughters, devised his lands to be. sold to pay his debts, &c. and as to the moneys arising by the sale, after debts paid, gave JB200 to A. the eldest son, at the age of 21, and ^he fesidue to bis four younger children. A. died be fore the age of 21, in consequence of which, the bequest to him failed to take, ^effect. The court decided that the £200 should be considered as land to descend to the heir at law of the testator, because it was in effect, the sáme as if so much land as was of the value of ,£200 was not directed to be sold, but was sufferred to descend. The, case of Ackroyd v. Smithson, (1 Bro Ch. Cas. 503.) is one of the same kind, and .establishes the same principle. So, likewise, a money provision under, a marriage con-' tract, to arise out of land, which did not take effect,, on account of the death of the party for whose benefit it was intended, before the time prescribed, resulted as money to the grantor, so 'as to pass under a residuary clause in his will. (Hewitt v. Wright, 1 Bro. Ch. Cas. 86.). Land «1 to to sell for payment of debts to Adeemed law has a suiting trust such lands, and legacies may com'e into Sihithetrus" tee from sulkcient to nwy^offer pay them self, and pray a conveyance of the part of the land not qpse^'and ^tlfe latter which property in either case will be Zand and not money. °te» appears to harfljpeeii to stamp upon oMh/ianTd? ly suited to the heir at law.

' It is evident, therefore, from a view of the above bases, that the title of the heir to a resulting trust can never arise, except when something is left undisposed of, either by some defect in the will, or by some subsequent lapse, which prevents the devise from taking effect; and not even then,-, if it appears that-the in-. tent-ion of the. testator wa's' to change the nature of the estate from land to money, absolutely and entirely, and not merely to serve the purposes of the will. But the ground upon which the title of the heir rests is, that whatever is not disposed of remains to him, and partakes of the o'ld use, as if it had not been directed to.be sold.

The third proposition laid down in the case of Roper v. Radcliffe, is, that equity will extend, the same privilege to the residr.ary legatee which is allowed to the heir, to pay the debts and legacies, and call for a conveyance of the real estate, or to restrain the.trustees from selling more than is necessary to pay ihe debts and legacies.

Equity will extend the toThe re'sTduawhich’i^fííow ofiegacies, conveyance of ni<>r® than i» necessary *6 pay the debts 1®s't are extremely dissimilar. ^ The former is incapable to take by purchase, any lands, or profits out of lands ; and all estates, terms, and any other in? forests ox profits whatsoever out of lands, to by, mac/e, Suffered, or done, to, or for thé use of such person? or upon any. trust for him., or to, or for the benefit, or, relief.of any such person,^are declared by the statute, to be utterly void.

Thus, it appears' that he cannot even take. His. incapacity is not copfinert to-land, b.u.t. to any profit, interest, benefit, or relief,"in or out .of it. He is not |p?ly disabled .ftom..takiqg.. csr. haying the benefit ofiany Such interest, but the will or deed itself,. which attempts to pass it, is void. Iii. Roper v. Radcliffe, it was strongly insisted, thrft the money given to the papistj which was to be the proceeds of the-land, was a Drofit or interest out of the land.. If this • be so, (and' it is not immaterial in this, case to affirm or deny that position,) tiien the .wiil of John Roper in relation to the bequest to the two papists ioas void under the statute; apd if so, the fight of the heir at law of the testator, to the residue, as a -resubiog trust , was incontestable. The cases above cited have fully established that principle. In that case, too, U16 rents and profits, till the. sale, would, have belonged to the papists, if they were capable of taking, which brought the case still more strongly within the statute ; and this was much relied on, not only-in fea • soning upon the words, but the policy of the statute.

Now, what .is the situation of an alien? He can not only take an interest in - land, but a freehold interest in the land itself, and may hold it against all the world but the king, and even against him until office found, and he is not accountable for -the rents and profits previously received.a In this case the will being valid, and the. alien capable of taking under it, there can be no resulting trust to the heir, and the claim of the state is founded solely upon a supposed equity, to have' the land by es’cheatj as if the alien had, or could upon the principles of a court ' of equity have elected io take the land instead of the money. The points of difference between the two case are ,so striking that it would be a waste of time .to notice them in detail.

It may be further observed, that the case of Roper v. Radcliffe has never, in England, been applied to the case of aliens; that if s authority has been'submit' ted to with reluctance, and is. strictly confined in its application to cases precisely parrallel to it. .Lord Mansfield, in.the case-of Foone v. Blount, speaks of it with marked disapprobation; and we know, that had Lord Trevor been present, and declared the opin. ion he had before .entertained, the judges would have been equally divided.

The case of the Attorney General and Lqrd Weymouth, (Ambler. 20.) was also pressed upon the court, as strongly supporting that of Roper v. Radcliffe, and as bearing upon the present case.

- The fiist of these propositions might be ' admitted ; although it is certain that the mortmain act, upon which that case was decided, is even stronger in its expression than the statute against Papists, and the chancellor so considers it; for, he says, whether the surplus be considered as money or land, it is just the ¿ame thing, the statute making void all charges-and encumbrances on land, for the benefit of a charity.

But if this case wege,. in all respects, the same as Roper v. Radcliffe, the observations which have been made upon the latter, would all apply to it. It may be remarked, however, that in this case, the chancellor avoids expressingany opinion upon theques* tiont whether the jjaoney to wise from the sake of the land, was to be taken as personalty or land ; and although he mentions the case of Roper v. Radcliffe, he adds, that he does not depend upon it, as it was imsüateriaí whether the surplus was to bé considered as land or money under the mortmain’ act.

Upbn the whqle, we are unaruinnudy of opinion, that the legacy given to Thomas Craig, in the will of Robert Ciaig, is to be consi.lere.1 as a bequest of personal estate, which he is capable of taking for his own benefit.

Certificate accordingly.

a

Vide ante, p. 12. Jackson ex dem. State of New-York v. Clarke, note e.