an equitable conversion. For it is the duty to convert, and the certainty that the actual conversion will take place sooner or later, which a court of equity construes, as a conversion from the death of the testator. Here the testator devised all his estate, real, personal and mixed to three trustees, with full power and authority, in their discretion, to sell and convey any of his estate, and he directs the trustees, in finally settling up and adjusting and paying over the amount of the proceeds of his estate, to distribute among three children all such sums of money as shall belong to said estate. The direction is made discretionary in termis. Though the last clause might be construed as expressing an expectation on the part of the testator that his estate would be all converted, yet it was not sufficiently clear to infer from it a direction to the trustees to sell at all events, and thereby to work a constructive conversion.

In the opinion it is said: "It may have been described as money, in the residuary clause, not for the purpose of controlling the discretion of the trustees, aor of indicating an intention that the legatees should have nothing but money, but only because the testator may have expected, that under the discretionary power of the trustees, the estate would be converted into money. The Court goes on to say: "And will such an implied expectation, when there is no command and the distribution of the estate in kind, to those to whom it is given would not violate any express provision of the will, furnish such evidence of an intention to convert he whole estate into money, as to horize a court of equity to regard

it as money, before it is actually converted? The doctrine of equitable conversion is at best extremely artificial. Its basis is that things agreed to be done are treated, in equity, as if actually done, but as the principle is stated in Story's Equity, Vol. II, 212 and 214, they are so treated for "many purposes," and, therefore, impliedly, not for all purposes; and the court does not interfere to change the quality of the property as the testator has. left it, unless there be some clear act or intention by which he has fixed upon it throughout a definite character, as money or as land. Nor will equity consider things as done in this light in favor of everybody, but only of those who have a right to pray that it might be done."

It is said in Powell on "Devi. ses," at page 63: "The new char. acter must be decisively and absolutely fixed upon the property." If trustees may convert it or not as they see fit, there is no constructive conversion.

I do not see that such statements show any obvious disfavor to the doctrine itself, nor can I find any expressions in Hite . Hite, the case taken for annotat:on, which is a decision of a Kentucky court, showing that equitable conversion is any more unfavorably received in Kentucky than in the other States. Judge HOLT says, in Hite v. Ilite: "The intention of the testator must govern." He undoubtedly intended that the trustees should so change and invest the estate to make all of it productive of income. This is evident from the eighth clause of the will which directs them to invest and dispose of it, "so as to be safe and produce income." He must have known that this could not be done at once,

without sacrifice. This doubtless led to his giving them a broad discretion in the matter. The estate was large, much of it, at his death, was already productive, and it cannot well be supposed that he expected a part of the principal would be given to the life tenants to compensate for a delay which he knew must occur before the remainder could be made so. Then follows the only clause in the opinion that could possibly be considered as throwing disfavor upon the doctrine of equitable conversion, which he had already adopted. The doctrine of equitable conversion is at best, an artificial, arbitrary one. It will not be applied unless it be made the duty of the trustees to sell. The Chief Justice concedes that the duty to sell is imposed upon the trustees in this case and holds that the discretion given, relates only to the time when it shall be done.

In Christler v. Medis, 6 B. Mon., 37, and in Hocker v. Gentry. 3 Meb. (Ky.), 473, the doctrine is stated, that if the direction to sell is imperative, the right of the legatee will, in equity, be regarded as a right to money, from the time of the testator's death, though the period of sale is remote, and conversion cannot be made until the time arives.

The Court, in the first of the above cases, said: "Real estate is converted into personalty, immediately upon the death of the testator, only where the direction to sell is positive, without limitation and without discretion as to time, on the part of those to whom the power is delegated."

The statement that the direction of sale must be without limitation as to time cannot stand, because it

is clearly the rule in Kentucky that, though the time of sale is left to the discretion of the trustees, yet if the duty to sell sometime is placed upon them constructive conversion will take place.

In Green v. Johnson, 4 Bush., 164, decided in 1868, the Court construed the words "authorize and request" as working a conversion. Judge ROBERTSON says: "If, instead of devising the title to his three daughters, and merely requesting a sale of the land, the testator had devised it to the executors, and peremptorily ordered them to sell; it is admitted that, as to that interest, it was money bequeathed, and not land devised. Nevertheless, if thewill con cerning the sale must be construed as mandatory, the testator must be presumed to have intended a conversion of the land into money, as best for the testamentary beneficiaries; and his intention if clearly manifest for such conversion, made the land money to the legatees. A mere authority to sell could not have been a constructive conversion; but the super-added "request to sell was constructively mandatory, because the unqualified request" was the testator's will, and left no discretion not to sell. Authority, analogy and reason allow no escape from this conclusion. Whatever a testator expresses as his will is mandatory; and if the will is unqualified the executors have no right to refuse its fulfill. ment. Such "request" is synonymous with "require," or "direct," "order." The testator seemed to think that his provident end, of the best interest and security of his daughters, would be most advantageously attained by converting certain lands into money, and for

or

that purpose he requested his executors to make the conversion. This, in equity, was conversion itself, and, therefore, the daughters took money instead of land.

A court that will construe " request as synonymous with "direct," in order to hold that an equitable conversion has been effected, can hardly be said to look upon the doctrine with disfavor. See also Collins Champ's Heirs, 15 B. Mon., 118.

When lund directed to be sold is devised to certain persons, they take a gift of money; but if they elect to take the land as land, the sale need not actually take place, though the beneficiaries are regarded as purchasers. So, if the testator inserts in his will a clause giving a legatee the right to elect to take the land instead of money, yet as this is giving him no greater right than the law had already giren him, such a will is considered as working a conversion of the land: Rawlings v. Landis, 2 Bush., 158; Perkins v. Coghlan, 148 Mass., 30; McFadden v. Hefley, 28 S. C., 317.

King King, 13 Rhode Island, 501 (1882), shows that the courts of Rhode Island have adopted the doctrine in its entirety. The clause of the will construed in this case was one by which the testator gave his executors a general authority and power of sale of his real estate. He says: "They may from time to time, and as often as they deem to be for the interest of said trust, sell and convey any of my real estate. and invest the proceeds. DURFER, C. J., asks: "What was the the testator's intention? The rule being that, in equity, the property will be treated as being already what it was intended that it should become. Did the testator intend

simply to give the executor or trus tee under his will a power to convert, leaving it discretionary with them to convert or not? If so, the conversion will depend upon the will or discretion of the executors or trustees, and will not be consid ered as consummated in law until it is consummated in fact." In support of this statement, the Chief Justice cites several English cases and Cook v. Cook, 20 N. J. Eq.. 375; Anewalt's App., 42 Pa., 414; Chew v. Nicklin, 45 Pa., 84. The question of the testator's intention is decided by the rule given in Story's Equity, Vol. II, 214, already quoted, or as the rule is elsewhere laid down: "For the will to operate as a conversion, it must show in terms, or by necessary implication, that the testator intended the property to be converted absolutely, and at all events." The reason for this rigor of construction is, that there is not a spark of equity between the next of kin and the heir, and that therefore neither ought to lose the right which the existing character of the property gives him until it is clearly demonstrated that the testator intended to have it changed.

In New Jersey, the case of Cook v. Cook, 20 N. J. Eq., 375, contains the rule applicable there. Chancellor ABRAHAM {ZABRISKIK, in construing the following words in a will: "I do authorize and empower my executors to sell and dispose of all my real estate," says: "When land is directed to be sold, absolutely and positively, without any time fixed for sale, it is considered as converted into money, from the death of the testator; but for this, the direction must be imperative. If it is optional with the executor whether to sell or not to

sell, or if it is only an authority to sell without any direction, then the land retains its character as land until it is actually sold. If the directions of the will, as to proceeds, require a sale, it is equivalent to a positive direction to sell, and the land is deemed persona! property from the death of the testator. In this case the executor was not directed, nor required to sell, except so far as a sale was necessary for the purpose of paying debts and the legacies directed to be paid. As to the rest, it was a mere power which he could exercise or not at his discretion, and therefore the land must be considered as having retained its charac ter as land until actual sale.

When land for certain purposes is required to be converted into money, and in the sale more is sold than is required for these purposes, the excess of proceeds will be con

sidered as land: Oberle v. Lerch, 18 N. J. Eq., 346.

The rules, as shown by the cases above digested, seems to be adopted universally throughout the United States: See Holland z. Cruft, 3 Gay (Mass.), 162; Hammond v. Putnam, 110 Mass., 232; Perkins v. Coghlan, 148 Mass.; Dodge v. Williams, 64 Wis., 70; Ex parte McBee, 63 N. C., 332; Loftus v. Glass, 15 Ark., 680; Pratt v. Taliaferro, 3 Leigh (Va.), 419; James v. Thockmorton, 57 Cal., 368: Ferguson v. Stuart's Ex., 14 Obic, 140; Smithers v. Hooper, 23 Md., 273.

It is the adopted rule that conversion will be effected where, either from the will itself or from the circumstances of any particular case, the intention of the testator clearly appears to be that a sale shall be made, either at once, or at some fixed time in the future.

J. HOWARD RHOADS.