Chap. XX. Republication of will. Execution of power of revocation. or there is an intention expressed to appoint the whole fund, or there is evidence on the face of the will that the testator treats the fund subject to the power as his own, a residuary gift may execute the power so far as it remains unexecuted. Elliott v. Elliott, 15 Sim. 321; Daries v. Fisher, 5 B. 201; Re Comber's Settlement, 14 W. R. 172; Harvey v. Stracey, 1 Dr. 73. And a gift of "the residue of my property and over which I have any power of disposal by will" may pass a share of a fund appointed by the will under a special power to a person not an object of the power. In re Hunt's Trusts, 31 Ch. D. 308. Where there was a special power exercisable by the survivor of a husband and wife, after the death of the other of them, and the husband made a will in the lifetime of the wife containing words sufficient to refer to the special power, and after her death republished the will by a codicil, the will was held to execute the power. In re Blackburn; Smiles v. Blackburn, 43 Ch. D. 75; see Hope v. Hope, 5 Giff. 13. Where property is appointed under a power and a power of revocation is reserved, the power of revocation may be impliedly exercised if the will is expressed to be in exercise of the original power or appoints the property subject to the power. Quinn v. Armstrong, I. R. 11 Eq. 161. See But where a special power in a settlement has been partially exercised by a deed reserving a power of revocation, an appointment by will expressed to be made by virtue of the power in the settlement or otherwise howsoever, will not exercise the power of revocation, but will take effect only on the unappointed property. Pomfret v. Perring, 5 D. M. & G. 775. And a will expressly exercising a special power, which is afterwards exercised by a deed reserving a power of revocation, will not operate upon so much of the property as is well appointed by the deed. In re Wells' Trusts; Hardisty v. Wells, 42 Ch. D. 646. An appointment expressed to be under a particular power and all other powers enabling the testator, may take effect upon such interest as the testator has if the particular power does not in the events that have happened become exercisable. Sing v. Leslie, 2 H. & M. 68. Chap. XX. power of land on trust for It is well settled that a power to appoint land is well exercised by an appointment to trustees on trust for sale; and also that a Appointment power to appoint a fund is well exercised by an appointment under special of the fund to trustees for certain persons, provided in each to trustees case the persons beneficially interested under the appointment are objects of the power. Long v. Long, 5 Ves. 445; Kenworthy v. Bate, 8 Ves. 793; Crozier v. Crozier, 3 D. & War. 371; Thornton v. Bright, 2 M. & Cr. 230. In the case of an appointment of land to trustees on trust for sale, where the trustees take the legal estate, they are the persons to sell and make a title. In re Paget; Mellor v. Mellor, (1896) 1 Ch. 290. Bush v. sale; to new But in the case of a fund vested in trustees and appointed of personalty under a special power to new trustees upon trusts, the original trustees. trustees are the persons to administer the trusts. Aldam, 19 Eq. 16; Von Brockdorff v. Malcolm, 30 Ch. D. 172; see Scotney v. Lomer, 29 Ch. D. 535; 31 Ch. D. 380 ; In re Cotton; Wood v. Cotton, 40 Ch. D. 41; In re Tyssen; Knight-Bruce v. Butterworth, (1894) 1 Ch. 56. CHAPTER XXI. Chap. XXI. Imperative direction to convert. Direction that land is to be considered money or money land. Direction to divide. Discretion as to time. CONVERSION. I. WHAT AMOUNTS TO A DIRECTION TO CONVERT. If there is an imperative direction to convert, the property is in equity treated as converted from the testator's death. A direction that land is to be considered as money or rice versâ will not work a conversion, but an actual change of one form of property into another must be intended. Johnson v. Arnold, 1 Ves. Sen. 171; A.-G. v. Mangles, 5 M. & W. 120; Edwards v. Tuck, 23 B. 268; 3 D. M. & G. 40. A trust for sale which is void for remoteness does not effect a conversion. Goodier v. Edmunds, (1893) 3 Ch. 455. Upon the construction of the whole will what is in form only a power to convert may be shown to be in effect an imperative trust, and on the other hand, what is in form a trust for sale may be shown to be a discretionary power only. Burrell v. Baskerfield, 11 B. 525; In re Hotchkys; Freke v. Calmady, 32 Ch. D. 408; Glover v. Heelis, 32 L. T. 534; 23 W. R. 677. A direction to divide does not imply a conversion. Cornick v. Pearce, 7 Ha. 477; Lucas v. Brandreth, 28 B. 273. But a direction to get together and divide among a large number of legatees property consisting of realty and personalty and previously described as scattered about and not realised, coupled with a direction to invest some of the shares, is in effect a direction to convert. Mower v. Orr, 7 Ha. 475; see Owen v. Owen, (1897) 1 Ir. 583. Where a conversion is directed, the fact that the trustees have a discretion as to time will not alter the general rule. Doughty v. Bull, 2 P. W. 320; In re Raw; Morris v. Griffiths, Chap. XXI. 26 Ch. D. 60. When conversion is to take place upon request the question Conversion is, whether the conversion was intended to be made in all upon request. events, and the request is only an additional safeguard, or whether no conversion was intended till request. If the conversion is to be upon request of certain persons, and the property is disposed of, whether converted or not, there is no conversion till the request. In re Taylor's Settlement, 9 Ha. 596; Daries v. Goodhew, 6 Sim. 585; see Mec. Guire v. Mec. Gwire, (1900) Ir. 200. On the other hand, if there is a general intention to convert evidenced by the fact that the limitations are applicable only to the property as converted, and by the fact that the conversion is to be at the request of certain persons or the survivor or the executors or administrators of the survivor, the property will be considered as converted. Thornton v. Hawley, 10 Ves. 129; see Lechmere v. Earl of Carlisle, 3 P. W. 211; Batteste v. Maunsell, I. R. 10 Eq. 314. discretion to convert. Where trustees have a power to convert or an absolute Power or discretion to convert or not, the property remains unconverted till the power or discretion is exercised. Greenway v. Greenway, 2 D. F. & J. 128; Polley v. Seymour, 2 Y. & C. Ex. 708; Yates v. Yates, 6 Jur. N. S. 1023; Brown v. Bigg, 7 Ves. 279; Bourne v. Bourne, 2 Ha. 35. Similarly, where trustees have an option to convert either into realty or personalty, the property will be considered of that species into which the trustees converted it. Ian v. Barnett, 19 Ves. 102; Walker v. Denne, 2 Ves. Jun. 170; Rich v. Whitfield, L. R. 2 Eq. 583. Where there is a settlement of real estate with the usual power of sale, and trust for reinvestment in freeholds or leaseholds with power of interim investment in personalty, a sale and investment of the proceeds in personalty will not effect a conversion. In re Bird; Pitman v. Pitman, (1892) 1 Ch. 279. may be con The option of the trustees may, however, be controlled by Discretion the general intention expressed in the will. Thus, if personalty trolled by the is directed to be laid out in land or other security, and settled context. Chap. XXI. in the same way as realty devised by the will, the general intention that the real and personal estate are to go together may override the option. Earlom v. Saunders, Amb. 241; Cowley v. Harstonge, 1 Dow, 361; see Minors v. Battison, 1 App. C. 428. And an option to lay out a sum in the purchase of lands may amount to a positive direction if there is a provision that if the purchase is not made the securities are to be and enure to such purposes as if land had been purchased. Jobson v. Arnold, 1 Ves. Sen. 169. But where the will disposes only of personalty, and the trust for conversion does not apply to securities for money, and there is then a trust to invest the proceeds of conversion in the purchase of real estate or in the public funds, the fact that the limitations are appropriate only to realty will not control the trustees' option so as to convert the personalty. Erans v. Ball, 30 W. R. 899; 47 L. T. 165. The fact that personalty which trustees have an option to convert is given to a person, his heirs and assigns, is not alone sufficient to limit the option of the trustees. Cookson v. Cookson, 12 Cl. & F. 121; Atwell v. Atwell, 13 Eq. 23. Money to be laid out in land. II. WHETHER CONVERSION IS DIRECTED FOR ALL THE It is a question of construction in each case whether conversion is directed for all or only for some of the purposes of the will; whether, for instance, personalty to be laid out in land goes to the residuary devisee, or land directed to be sold goes to the residuary legatee if the immediate, purpose for which conversion is directed fails. 1. If personalty is directed to be laid out in the purchase of land to be subject to the uses of the testator's real estate, and those uses fail, the conversion fails also, and the personalty goes to the residuary legatee. Hereford v. Ravenhill, 5 B. 51. 2. Where realty is directed to be converted and form part of the personal estate, it will be subject to all the limitations of of the personal the personal estate, and will pass by the residuary bequest. Proceeds of sale of realty to form part estate. |