case, the trust must be couched in imperative language, and in the second the contract must be bind. ing.

The conversion in the first instance takes place from the death of the testator, as that is the time when the will takes effect, and in the second instance, from the delivery of the papers forming the settlement or contract: Van Vechten. Van Vechten, 8 Paige, 106; McClure's App., 72 Pa., 414; Loftis v. Glass, 15 Ark., 680: McWilliam's App., 9 Cent. Rep., 773: Arnold v. Gilbert, 5 Barbours S. Ct., 192.

It is only the first of these two methods of working a conversion with which we have to deal at present-that is conversion arising under a trust in a will.

By the use of certain words of direction a testator makes it imperative upon his executors or trustees to convert his estate into that species of property in which he wishes to give it to his beneficiaries. It is this duty, imposed upon the executors or trustees, which a court of equity considers as performed, even before actual conversion has been made, and in order that the rights of parties in interest may not be prejudiced by delay on the part of the executors or trustees. In carrying out the direction of the testator, the conversion directed to be made is considered as effected as of the date of the testator's death: Craig v. Leslie, 3 Wheat., 563; Holland v. Cruft, 3 Gray, 180; Kane v. Gott, 24 Wend., 641; Greenland v. Waddell, 116 N. Y., 234; Allison v. Wilson, 13 S. & R., 330; Collins v. Champ's Heirs, 15 B. Mon. (Ky.), 118; Green v. Johnson, 4 Bush., 167.

As a delay on the part of the executors will not prevent a conversion from taking place, so a

direction in the will postponing the time of sale will not have that effect: Hocker v. Gentry, 3 Metc. (Ky.), 463; High v. Worley, 33 Ala., 196.

There are several well-recognized ways in which conversion may be worked by a testator: First, by an express, imperative direction to executors or trustees to sell land and distribute the proceeds, or to lay out a fund in land for a devisee; second, by applying to one kind of property limitations applicable to it only in its changed form; and, third, by a blending of real and personal property in such a way that distribution can only be effected by a sale of one kind of property or the other.

The leading English authority on the subject of equitable conversion is Fletcher v. Ashburner, Bro. C. C., 497. The testator devised real estate to trustees in trust (after his widow's death) to sell the same and divide the proceeds between his son and daughter. Nothing could be more clear and imperative than such a direction. The testator's intention, which is the touchstone by which the question of conversion or no conversion, and indeed most other questions relating to the interpretation of wills are decided, is here apparent, to wit: that the land should be sold and the proceeds divided.

The question before the court arose in this way: The son and daughter, the legatees under their father's will, both died in the lifetime of their mother, until whose death conversion in fact could not take place, and so at the time of her death the land was still in fact land, and as such it was claimed by the son's heir-at-law. The personal representatives of the widow

claimed it as personalty, and Sir THOMAS SEWELL, M. R., decided in their favor, saying: "Nothing is better established than the 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. The cases establish this rule universally."

In the old case of Doughty v. Bull, 2 P. Wm., 320, Lord Chancellor KING held that a direction to trustees to sell land and distribute the proceeds, the time of sale being left to the discretion of the trus tees, would work a conversion. The Lord Chancellor says: "The rule being that lands devised to be sold are thereby made personal estate, this case is within such rule, the lands are here devised to be sold and only the time of sale left discretionary."

If the direction to sell be imperative a long delay in the sale will not prevent a conversion : Yates v. Compton, 3 P. Wm., 308, was a case of a devise of land to executors to sell and pay an annuity. There was a long delay in the sale and, the annuitant dying before it was made, the heir claimed the land. The Lord Chancellor decided that the clearly expressed intention of the will was to give away all from the heir, to turn the land in question into personal estate, and this must be taken as if it was at the time of the death of the testator, and ought not te be altered by any subsequent accident.

In 1838 Lord Langdale, M. R., held the following will to have worked a conversion out and out: "I do empower my wife to sell all my real estate whatsoever and the money arising from such sale,

together with my personal estate, she, my said wife, shall and may divide and proportion among my said children as she shall by will direct." The widow died without having sold or apportioned the estate. The power to sell was construed as in the nature of a trust for the children, and subject to such apportionment as the widow might make, the children were entitled in equal shares to the converted real estate: Grieveson v. Kirsopp, 2 Keen, 653.

The provisions in the wills considered in the cases of in re Ibbitson, L. R. 7 Eq., 226, De Beauvoir v. De Beauvoir, 3 H. L. Cas., 548, were held not to be couched in sufficiently imperative language to effect a conversion, though in the latter case the intention of the testator was to make his real and personal property blend and to give the combined fund the character of real property: See Atwell v. Atwell, L. R. 13 Eq., 23.

In the case of Curling v. May, cited 3 Atk., 255, A gave £500 to B in trust, that B should lay out the same upon a purchase of lands or put the same out on good securities, for the separate use of his daughter, H (the plaintiff's then wife), her heirs, etc., and died 1729. In 1731 H, the daughter, died without issue, before the money was invested in a purchase. The husband, as administrator, brought a bill for the money against the heir of H, and the money was decreed to the administrator; for the wife, not having signified any intention of a preference, the court would take it as it was found. If the wife had signified any intention it should have been observed, but it was not reasonable at that time to give either her heir or the adminis trator or the trustee liberty to elect.

Lord TALBOT said: "It was originally personal estate, and yet remained so, and by reason of the alternative language of the will nothing could be gathered from it as to what was the testator's principal intention."

Where the direction was to purchase land or other securities, and this was followed by the limitation to trustees in trust for the wife for life, and after her decease to such uses and under such provisions, conditions and limitations as his lands before devised were limited, Lord HARDWICKE decided that conversion of the above fund was not at the election of the trustees. It was the evident intention of the testator that the money should be laid out in land, and the discretion must be taken to mean only that, till lands are purchased, the trustees might invest the money in personal securities: Earlom v. Saunders, Amb., 241.

Had there been no clause showing conclusively the testator's intention to convert, the alternative character of this direction would have prevented a conversion from being effected.

In Bleight v. the Bank, 10 Pa., 131, a conveyance to trustees to pay an annuity out of the rents of certain real estate or to sell was held not to make a conversion because it was not imperative on the trustees to exercise the power. Where a discretion whether to sell or not is vested in any executor or devisee conversion does not take place.

Mr. Justice THOMPSON says in Anewalt's App., 42 Pa., 414: Το establish a conversion the will must direct it out and out, irrespective of all contingencies. The direction to convert must be positive and explicit and the will myst

decisively fix upon the land the quality of money. The sale directed in this case depended upon several contingencies. It was made dependent upon the acceptance or non-acceptance of the land on certain terms by his sons. See also Nagle's App., 13 Pa., 260, and Stoner v. Zimmerman, 22 Pa., 894. In Foster's App., 74 Pa., 391, a question as to the conversion of partnership land arose, and Judge SHARSWOOD said, delivering the opinion of the court: "Conversion is altogether a doctrine of equity. In law it has no being. It is admitted only for the accomplishment of equitable results. It may be termed an equitable fiction, and the legal maxim in fictione juris semper subsistit equitas has redoubled force in application to it. It follows, of necessity, that it is limited to its end. When the purpose of conversion is attained conversion ends, or, more accurately, reconversion takes place."

Where the conversion directed to be made is only for certain purposes, those purposes failing the conversion does not take place, but it is sometimes a difficult question whether the intention of the tes tator is to convert only for the purposes of the will or out and out for all purposes. This can only be determined by a consideration of the entire will.

In Page's Estate, 75 Pa., 87, the entire estate was vested in trustees, the personalty to be held upon certain trusts, and the executors, in the fourth item of the will were clothed with a discretionary power to sell any part of the real estate, the proceeds of such sales to be held upon the same trust. It was held that although conversion may arise without express terms, where it is clear that the testator meant to

create a fund out of both real and personal estate, and bequeathed it as money, yet as the whole frame of the will in this case indicated no more than a mere discretionary power to sell any part of the real estate, no conversion was worked.

These words, "Lastly, it is my will, that, after the death of my beloved wife, all my estate be appraised and sold as soon as it can be done with advantage; and if any of my sons think proper to take the farm on which I now live, at the appraisement, he shall have the privilege of doing so on paying the other heirs their respective shares; and it is my will that all the money arising from the sale of my real estate be equally divided among all my children share and share alike," were held an express direction to sell, and the fact that the will further permitted one of the sons at his option to take the farm at the valuation to be made, did not change the effect of the direction to sell. Whether or not a son acquired the farm, it was nevertheless a sale, and the one taking it became a purchaser : Laird's App., 85 Pa., 339.

The probable Pennsylvania rule on this doctrine is found in Jones v. Caldwell, 97 Pa., 42, where Mr. Justice PAXSON delivering the opinion of the court, says: "An abso. lute direction to sell lands after the death of the testator's widow, and to divide the proceeds among his children, effects an equitable conversion thereof into personalty." The testator in this case left the income of his real estate to his wife, so long as she remained his widow, and after her death he directed his executors to dispose of all his property real, personal and mixed, and he goes on to say that if his heirs

agree to a division of the estate amongst themselves, the executors are not to be bound to make the sale. This subsequent provision does not prevent a conversion, because it is surplusage and may be stricken from the will without altering its legal effect. The law gives the heirs the right to elect to take the property as real estate. The testator must have intended a conversion even in the event of a division of the estate among the heirs by agreement. There were eight heirs, and but five separate properties of unequal values. Be that as it may, to have divided them would have required either a sale between themselves or partition according to law. The latter would have necessarily involved an appraisement and sale, and hence a conversion.

The fact that one of several beneficiaries may be given an option to take the property in its unconverted state does not prevent a conversion from taking place: Laird's App., 85 Pa., 339; Pyle's App., 102 Pa., 317; Miller v. Commonwealth, 111 Pa., 321.

In number one hundred of the Pennsylvania State Reports are found two cases which treat the subject of conversion rather fully The first is Roland v. Miller, at page 47, in which a testatrix directed that all her personal estate should be equally divided among her children and heirs at law. Further on in the will she made the same disposition of the proceeds from any sale of her real estate. The executors were not to be compelled by her heirs to sell any real estate until the expiration of the term for which such real estate might be leased. She prohibited the sale of any real estate

for ten years after her decease, unless her executors should deem it advantageous or advisable to sell the whole or any part, in which case they were authorized and empowered to do so within the term of ten years. TRUNKEY, J., says: "It never is presumed that a testator intended to die intestate as to any part of his estate if a contrary intent can be fairly deduced from the language of his will. The natural and reasonable intendment of this will is, that the realty shall be sold and the proceeds divided among the legatees. Within a limited time the executors have unlimited discretionary power to sell, after that time they are bound to sell. A provision that the executors shall not be compelled to sell, by the heirs, until the expiration of a stipulated term, implies that then they may be compelled. The power vested in the executors, discretionary for a certain time, thereafter is unconditional, not dependent on discretion or contingency, nor upon the consent or agreement of any person, and if they neglect or refuse to exercise it, they may be compelled to perform their duty by legal process at the instance of any legatee."

The other case in this same volume of reports is Bright's App., 100 Pa., 602. Here the testator directed all his real estate to be sold for the payment of debts and legacies; some of it he directed should be sold immediately. So much of it as was not necessary for the payment of debts he directed should not be sold till the first day of April, 1866. Mr. Justice PAXSON says: That the real estate was converted by the will is too plain for argument. Here was an express direction to sell, and divide

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the proceeds among nieces and nephews. It depended upon no contingencies except time, than which there is nothing more certain."

Where land is devised to executors with a direction to sell, the legal title thereto vests in them, but by some decisive act on the part of the heirs or beneficiaries it is possible for them to divest the legal title, and take the land in lieu of money: Anderson v. Anderson, 133 Pa., 408.

A will containing this clause, "I give to my executors power to sell and dispose of the whole or any portion of my real estate or personal property, if they find it necessary to do so in order to make a fair and equitable division of my estate," was held not to work an equitable conversion: Sheridan v. Sheridan, 136 Pa., 14.

Mr. Justice WILLIAMS in the above case said: "The will gives a power of sale, but leaves the question whether it shall be exercised or not to the discretion of the executors. The reason why a power of sale works a constructive conversion is only that it makes an actual conversion certain, which is not the case where discretion to use the power or not is left to the executors. The estate is treated at once as having the qualities it must necessarily have where the power is exercised."

A testator bequeathed all his estate to his wife, for her use, as long as she remained his widow. If she desired the land to be sold, the executor was to sell it, the proceeds to be invested for her use for life, or as long as she remained his widow. Held not to work a couversion, as the direction was not positive and explicit, and the will