Craig v. Leslie
16 U.S. 563 (1818)

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U.S. Supreme Court

Craig v. Leslie, 16 U.S. 3 Wheat. 563 563 (1818)

Craig v. Leslie

16 U.S. (3 Wheat.) 563

ON CERTIFICATE OF DIVISION OF OPINION AMONG THE JUDGES

OF THE CIRCUIT COURT FOR THE DISTRICT OF VIRGINIA

Syllabus

R.C. a citizen of Virginia, being seized of real property in that state, made his will:

"In the first place I give, devise, and bequeath unto J.L. [and four others] all my estate, real and personal, of which I may die seized and possessed in any part of America, in special trust that the aforementioned persons or such of them as may be living at my death will sell my personal estate to the highest bidder, on two years' credit, and my real estate on one, two, and three years' credit, provided satisfactory security be given by bond and deed of trust. In the second place, I give and bequeath to my brother T.C. [an alien] all the proceeds of my estate, real and, personal, which I have herein directed to be sold, to be remitted to him accordingly as the payments are made, and I hereby declare the aforesaid J.L. [and the four other persons] to be my trustees and executors for the purposes aforementioned."

Held that the legacy given to T.C. in the will of R.C. was to be considered as a bequest of personal estate, which he was capable of taking for his own benefit, though an alien.

Equity considers land, directed in wills or other instruments to be sold and converted into money as money, and money directed to be employed in the purchase of land as land.

The heir at law has a resulting trust in such lands, after the debts and legacies are paid, and may come into equity and restrain the trustee from selling more than sufficient to pay them, or may offer to pay them himself, and pray a conveyance of the part of the land not sold in the first case, and the whole in the latter, which property in either case will be land and not money.

Equity will extend the same privilege to the residuary 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 the debts and legacies.

But if the intent of the testator appears to have been to stamp upon the proceeds of the land directed to be sold, the quality of personalty, not only for the particular purposes of the will but to all intents, the claim of the heir at law to a resulting trust is defeated and the estate is considered to be personal.

Where the whole beneficial interest in the land or money thus directed to be employed belongs to the person for whose use it is given, a court of equity will permit the cestui que trust to take the money or the land at his election, if he elect before the conversion is made.

But in case of the death of the cestui que trust without having determined his election, the property will pass to his heirs or personal representatives in the same manner as it would have done if the conversion had been made and the trust executed in his lifetime.

The case of Roper v. Radcliff, 9 Mod. 167, examined, distinguished from the present case, and, so far as it conflicts with it, overruled.

An alien may take by purchase a freehold or other interest in land and may hold it against all the world except the King, and even against him until office found, and is not accountable for the rents and profits previously received.

Page 16 U. S. 564

This was a case certified from the Circuit Court for the District of Virginia in which the opinions of the judges of that court were opposed on the following question, viz., whether the legacy given to Thomas Craig, an alien, in the will of Robert Craig is to be considered as a devise which he can take only for the benefit of the commonwealth and cannot hold, or a bequest of a personal chattel which he could take for his own benefit.

This question grows out of the will of Robert Craig, a citizen of Virginia, and arose in a suit brought on the equity side of the Circuit Court for the District of Virginia by Thomas Craig against the trustee named in the will of the said Robert Craig to compel the said trustee to execute the trusts by selling the trust fund and paying over the proceeds of the same to the complainant.

The clause in the will of Robert Craig, upon which the question arises, is expressed in the following terms viz.,

"In the first place, I give, devise, and bequeath unto John Leslie [and four others] all my estate, real and personal, of which I may die seized or possessed, in any part of America, in special trust, that the aforementioned persons, or such of them as may be

Page 16 U. S. 565

living at my death, will sell my personal estate to the highest bidder on two years' credit, and my real estate on one, two, and three years' credit, provided satisfactory security be given by bond and deed of trust. In the second place, I give and bequeath to my brother, Thomas Craig, of Beith parish, Ayrshire, Scotland, all the proceeds of my estate, both real and personal, which I have herein directed to be sold, to be remitted unto him accordingly as the payments are made, and I hereby declare the aforesaid John Leslie [and the four other persons] to be my trustees and executors for the purposes aforementioned."

The Attorney General of Virginia, on behalf of that state, filed a cross-bill against the plaintiff in the original suit, and the trustee, the prayer of which is to compel the trustee to sell the trust estate, so far as it consists of real estate, and to appropriate the proceeds to the use of the said commonwealth by paying the same into its public Treasury.

The will of Robert Craig was proved in June, 1811, and the present suit was instituted sometime in the year 1815.

Page 16 U. S. 576

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

Page 16 U. S. 577

Virginia that this incapacity does not extend to personal estate. The only inquiry, then, which this Court has to make is whether the above 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.

Were this a new question, it would seem extremely difficult to raise a doubt respecting it. The common sense of mankind would determine that a devise of money, the proceeds of land directed to be sold, is a 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 itself, without regard to the character of the fund out of which the purchase is to be made.

The settled doctrine of the courts of equity correspond with this obvious construction of wills as well as of other instruments whereby land is directed to be turned into money or money into land for the benefit of those for whose use the conversion is intended 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

Page 16 U. S. 578

land. The cases 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. Compton, 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 to 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 come under this head of equity.

Thus, where the whole beneficial interest in the money in the one case, or in the land in 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 cestui que trust, but will permit him to take the money or the land if he elect to do so before the conversion has actually been made, and this election he may make as well by acts or declarations clearly indicating a determination to that effect 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.

Page 16 U. S. 579

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 cestui que trust without 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 lifetime.

In the case of Kirkman v. Mills, 13 Ves., which was a devise of real estate to trustees upon trust to sell, and the moneys arising as well as the rents and profits till the sale, to be equally divided between the testators, three daughters, A. B. and C. The estate was upon the death of A. B. & C. considered and treated as personal property notwithstanding the cestui que trusts, after the death of the testator, had entered upon and occupied the land for about two 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 Rosslyn that property was to be taken as it happened to be at the death of the party from whom the representative claims had been much doubted by Lord Eldon, who held that, without some act, it must be considered as being in the state in

Page 16 U. S. 580

which it ought to be, and that Lord Rosslyn's rule was new, and not according to the prior cases."

The same doctrine is laid down and maintained in the case of Edwards v. Countess of Warwick, 2 P.Wms. 171, which was a covenant on marriage to invest

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