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 �10,000, part of the lady's fortune,
in the purchase of land in fee, to be settled on the husband for
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 intestate, and the investment of the
money not having been made during his life, the chancellor decided
that the money passed to the heir at law; that 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, but that something to determine the
election must be done.
This doctrine, so well established by the cases which have been
referred to and by many others which it is unnecessary to mention,
seems to be conclusive upon the question which this Court is called
upon to decide, and would render any further investigation of it
useless were it not for the case of
Roper v. Radcliffe,
which was cited and mainly relied upon by the counsel for the State
of Virginia.
The short statement of that case is a follows:
John Roper conveyed all his lands to trustees and their heirs,
in trust, to sell the same, and out of the 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
otherwise
Page 16 U. S. 581
should appoint, and for want of such appointment for the benefit
of the said John Roper and his heirs. By 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 estate to William Constable and
Thomas Radcliffe and two others and 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 of the trust and claimed the land as a resulting trust
upon the ground of the incapacity of Constable and Radcliffe to
take, they being papists. The decree of the Court of Chancery,
which was in favor 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 favor.
Without stating at large the opinion upon which the reversal
took place, this Court will proceed 1st to examine the 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 before 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:
Page 16 U. S. 582
1. That land devised to trustees, to sell for payment of debts
and legacies, is to be deemed as money. This is the general
doctrine established by all the cases referred to in the preceding
part of this opinion.
2. That the heir at law has a resulting trust in such land, so
far as it is of value after the debts and legacies are paid, and
that he may come into equity and restrain the trustee from selling
more than is necessary to pay the debt and legacies, or he may
offer to pay them himself and pray to have a conveyance of the part
of the land not sold in the first case and the whole in the latter,
which property will in either case be land, and not money.
This right to call for a conveyance is very correctly styled a
privilege, and it is one which a court of equity will never refuse
unless there are strong reasons for refusing it. The whole of this
doctrine proceeds upon a principle, which is incontrovertible, that
where the testator merely directs the real estate to be converted
into money for the purposes directed in his will, so much of the
estate or the money arising from it as is not effectually disposed
of by the will, whether it arise from some omission or defect in
the will itself, or from any subsequent accident, which prevents
the devise from taking effect, results to the heir at law, as the
old use not disposed of. Such was the case of
Crewe v.
Bailey, 3 P.Wms. 20, where the testator having two sons, A.
and B., and 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 �200 to A., the eldest son, at the age of 21, and
the residue to his four younger children. A. died before
Page 16 U. S. 583
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 same as if so much land as was of the
value of �200 was not directed to be sold, but was suffered 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 contract, 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.
But even in cases of resulting trusts for the benefit of the
heir at law, it is settled that if the intent of the testator
appears to have been to stamp upon the proceeds of the land
described to be sold the quality of personalty, not only to
subserve 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. This was decided in the
case of
Yeates v. Compton, 2 P.Wms. 308, in which the
chancellor says that the intention of the will was to give away all
from the heir and to turn the land into personal estate, and that
this was to be taken as it was at the testator's death, and ought
not to be altered by any subsequent accident, and decreed the heir
to join in the sale of the land, and the money arising therefrom to
be
Page 16 U. S. 584
paid over as personal estate to the representatives of the
annuitant and to those of the residuary legatee. In the case of
Fletcher v. Ashburner, before referred to, the suit was
brought by the heir at law of the testator against the personal
representatives and the trustees claiming the estate upon the
ground of a resulting trust. But the court decreed the property, as
money, to the personal representatives of him to whom the
beneficial interest in the money was bequeathed, and the Master of
the Rolls observes that the cases of
Emblyn v. Freeman and
Crewe v. Bailey are those where real estate being directed
to be sold, some part of the disposition has failed, and the thing
devised has not accrued to the representative or devisee, by which
something has resulted to the heir at law.
It is evident, therefore, from a view of the above cases 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 intention
of the testator was 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 old 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
residuary legatee which is allowed
Page 16 U. S. 585
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.
This has in effect been admitted in the preceding part of this
opinion, because if the
cestui que trust of the whole
beneficial interest in the money to arise from the sale of the land
may claim this privilege, it follows necessarily that the residuary
legatee may, because he is in effect the beneficial owner of the
whole, charged with the debts and legacies, from which he will be
permitted to discharge it by paying the debts and legacies or may
claim so much of the real estate as may not be necessary for that
purpose.
But the Court cannot accede to the conclusion which, in
Roper v. Radcliffe, is deduced from the establishment of
the above principles. That conclusion is that in respect to the
residuary legatee, such a devise shall be deemed as land in equity,
though in respect to the creditors and specific legatees it is
deemed as money. It is admitted, with this qualification -- that if
the residuary legatee thinks proper to avail himself of the
privilege of taking it as land by making an election in his
lifetime, the property will then assume the character of land. But
if he does not make this election, the property retains its
character of personalty to every intent and purpose. The cases
before cited seem to the Court to be conclusive upon this point,
and none was referred to, or have come under the view of the Court
which
Page 16 U. S. 586
sanctions the conclusion made in the unqualified terms used in
the case of
Roper v. Radcliffe.
As to the idea that the character of the estate is affected by
this right of election whether the right be claimed or not, it
appears to be as repugnant to reason as we think it has been shown
to be to principle and authorities. Before anything can be made of
the proposition, it should be shown that this right or privilege of
election is so indissolubly united with the devise as to constitute
a part of it, and that it may be exercised in all cases and under
all circumstances. This was indeed contended for with great
ingenuity and abilities by the counsel for the State of Virginia,
but it was not proved to the satisfaction of the Court.
It certainly is not true that equity will extend this privilege
in all cases to the
cestui que trust. It will be refused
if he be an infant. In the case of
Seely v. Jago, 1 P.Wms.
389, where money was devised to be laid out in land in fee, to be
settled on A. B. and C. and their heirs, equally to be divided; on
the death of A., his infant heir, together with B. & C. filed
their bill claiming to have the money, which was decreed
accordingly as to B. and C., but the share of the infant was
ordered to be put out for his benefit, and the reason assigned was
that he was incapable of making an election and that such election,
if permitted, would in case of his death be prejudicial to his
heir.
In the case of
Foone v. Blount, Cowp. 467, Lord
Mansfield, who is compelled to acknowledge the authority of
Roper v. Radcliffe in parallel cases,
Page 16 U. S. 587
combats the reasoning of Chief Justice Parker upon this doctrine
of election with irresistible force. He suggests, as the true
answer to it that though in a variety of cases this right exists,
yet it was inapplicable to the case of a person who was disabled by
law from taking land, and that therefore a court of equity would in
such a case decree that he should take the property as money.
The case of
Walker v. Denne, 2 Ves.Jr. 170, seems to
apply with great force to this part of our subject. The testator
directed money to be laid out in lands, tenements, and
hereditaments, or on long terms, with limitations applicable to
real estate. The money not having been laid out, the Crown, on
failure of heirs, claimed the money as land. It was decided that
the Crown had no equity against the next of kin to have the money
laid out in real estate in order to claim it by escheat. It was
added that the devisees, on becoming absolutely entitled, have the
option given by the will, and a deed of appointment by one of the
cestui que trusts, though a
feme covert, was held
a sufficient indication of her intention that it should continue
personal, against her heir claiming it as ineffectually disposed of
for want of her examination. This case is peculiarly strong from
the circumstance that the election is embodied in the devise
itself, but this was not enough, because the Crown had no equity to
force an election to be made for the purpose of producing an
escheat.
equity would surely proceed contrary to its regular course and
the principles which universally govern it to allow that right of
election where it is desired,
Page 16 U. S. 588
and can be lawfully made, and yet refuse to decree the money
upon the application of the alien upon no other reason but because,
by law, he is incapable to hold the land -- in short, to consider
him in the same situation as if he had made an election, which
would have been refused had he asked for a conveyance. The more
just and correct rule would seem to be that where the
cestui
que trust is incapable to take or to hold the land
beneficially, the right to election does not exist, and
consequently that the property is to be considered as being of that
species into which it is directed to be converted.
Having made these observations upon the principles laid down in
the case of
Roper v. Radcliffe and upon the argument urged
at the bar in support of them, very few words will suffice to show
that, as an authority, it is inapplicable to this case.
The incapacities of a papist under the English statute of 11 and
12 Wm. III, c. 4, and of an alien at common law 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
interests or profits whatsoever out of lands to be made, suffered,
or done to or for the 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
confined to land, but to any profit, interest, benefit, or relief
in or out of it. He is not only disabled from taking or having the
benefit of any
Page 16 U. S. 589
such interest, but the will or deed itself which attempts to
pass it is void. In
Roper v. Radcliffe it was strongly
insisted that the money given to the papist which was to be the
proceeds of the land was a profit or interest out of the land. If
this be so (and it is not immaterial in this case to affirm or deny
that position), then the will of John Roper in relation to the
bequest to the two papists was void under the statute, and if so
the right of the heir at law of the testator to the residue as a
resulting trust was incontestable. The cases above cited have fully
established that principle. In that case too, the 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
reasoning 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. 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 escheat, as if the alien
had or could upon the principles of a court of equity
Page 16 U. S. 590
have elected to 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 its authority has been submitted to with reluctance,
and is strictly confined in its application to cases precisely
parallel 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 opinion he had
before entertained, the judges would have been equally divided.
The case of
Attorney General v. Lord 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 first 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 same
thing, the statute making void all charges and encumbrances on land
for the benefit of a charity.
But if this case were 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 expressing any opinion upon the
question whether the money to arise from the sale of
Page 16 U. S. 591
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 immaterial whether the surplus
was to be considered as land or money under the Mortmain Act.
Upon the whole we are unanimously of opinion that the legacy
given to Thomas Craig in the will of Robert Craig is to be
considered as a bequest of personal estate, which he is capable of
taking for his own benefit.
Certificate accordingly.