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OPTION TO PURCHASE.

accept it, even after your death, the nature of the property is changed. I think that I can make this quite plain to you. You have now both land and money. I will suppose that you have by your will given your estate to your eldest son, and the money amongst your younger children. You then grant a lease of the land to Tompson, and give him an option to purchase the estate for £25,000 at any time within ten years. You would think, no doubt, that you had secured the estate to your eldest son. But, on the contrary, if you die before the end of the 10 years, and Tompson, after your death, but within the 10 years, elect to purchase the estate, the money would go to your younger children, and your eldest son would be stripped of all his fortune! To obviate this, if you should enter into such a contract after making your will, you must, by a codicil, give the money to arise by sale to the person to whom you have given the estate, and then he will be secure of the property and if you make your will after the contract, expressly declare that your devisee shall have the purchase-money, if the lessee make his option to take the estate.

I shall now consider you as a buyer. The estate is yours from the moment the contract is executed; and the purchase-money must be paid out of your personal property. The consequence of equity thus deeming the estate to belong to you, is, that you may dispose of it by your will, or otherwise, even before the conveyance, just the same as if you had paid the purchase-money, and the estate were actually conveyed. You must, therefore, upon a purchase, always reflect that your disposable cash is decreased by the amount of the purchase-money; and that unless you otherwise dis

OPERATION OF CONTRACT TO PURCHASE.

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pose of it the estate will go to your heir. A moment's reflection will show what serious consequences may follow from a neglect on your part; for suppose you purchase an estate with the £10,000 in the funds, which you have given by your will to your younger children, and which constitutes the bulk of your personal property, and should neglect to devise the estate, the money must go to pay for it, at the expense of your younger children, who would be left nearly destitute, whilst your eldest son, to whom the estate would descend, would have a large fortune. Distressing cases of this kind happen every now and then.

If your personal property undisposed of is not sufficient to pay for the estate, it would be better, perhaps, to direct it to be sold again, and the first purchasemoney to be paid out of the money produced by the re-sale. You must remember that in devising or suffering an estate to descend which you have purchased and not paid for, your devisee or heir will be entitled to have the purchase-money paid out of your personal property, although you may have given it all to another person. A most vexatious case once happened: A younger brother agreed to purchase an estate from his elder brother; the conveyance was accordingly executed, but the money was not paid. The younger brother then made his will, giving his property to his brother, subject to legacies, and made him executor. The will, however, was not executed so as to pass the estate. The younger brother died, and the elder brother took the estate as his heir, and also paid himself the purchase-money out of the personal property; by which he disappointed the legatees, who lost their legacies, whilst he got both the estate and the purchase-money for it.

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PRECAUTIONS TO BE TAKEN

On the other hand, you must guard against the chance of the estate not being ultimately conveyed according to the agreement. For if equity should for any reason refuse to execute the contract, or a good title cannot be made, the person to whom you have given, or suffered the estate to descend, will not be entitled to have it paid for out of your personal property, although he may be willing to accept such a title as can be made to it; because equity will not interfere unless there is a binding contract at the death of the party. You should, therefore, provide for the purchase of another estate, of equal value for your devisee or heir, in case the one purchased should not be conveyed to him. I must, however, remark, that if by your will you direct an estate to be bought for which you have not actually contracted, and the estate cannot be bought according to your direction, yet equity will decree the money to be laid out in the purchase of another estate for the benefit of the devisee.

Before I close this Letter, I shall give you a caution as to your Hampshire estate, wherein you have only a long lease for years, which you have bequeathed to your second son John. You tell me that you are about to purchase the fee, or, as you express it, to buy the estate out and out. Now the effect of a conveyance of the fee to you will clearly be to put an end to the lease, and to give you the entire interest in the estate discharged from the lease, and so the bequest to John would be defeated; and the effect may be held to be the same, immediately after the contract is executed, and even before the conveyance; to guard against which you should give the fee to John without delay by a codicil to your will. And in giving this estate to John, after you have agreed to

BY THE PURCHASER.

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buy the fee, but before the conveyance, you should go a step further, and expressly declare that he shall have the lease, although he cannot obtain the fee, for it may happen, as it has in a similar case, that the seller is not the owner of the estate, or cannot make a good title to it.

You should bear in mind that, by the new law of wills, any estate which you may buy after the making of your Will, will pass by a general devise in it of all your estates. This I shall explain to you in a later Letter.

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PRECAUTIONS BY THE SELLER.

LETTER IV.

In this Letter I intend to draw your attention to the precautions to be observed on the sale and purchase of estates as between yourself and the other party; and first as to your conduct and duty as a Seller.

I will not argue with you, whether in selling an estate you are bound in conscience to disclose all its defects to the purchaser. Moralists, as you know, agree that a seller is bound to do so, although the principle has been controverted. I shall content myself with stating how the law on this subject stands.

If the person to whom you sell was aware of all the defects in the estate, of course he cannot impute bad faith to you in not repeating to him what he already knew; neither will you be liable if you were yourself ignorant of the state of the property. And even if the purchaser was at the time of the contract ignorant of the defects, and you were acquainted with them, and did not disclose your knowledge to him, yet he will be without a remedy if they were such as might have been discovered by a vigilant man. The disclosure of such defects is at most what the civilians term a duty of imperfect obligation; and to claim the aid of the law, you must yourself be vigilant. If, however, you should, during the treaty, industriously prevent the purchaser from seeing a defect which might otherwise have easily been discovered-for example, if you carefully conceal from him the necessary repairs of a wall to preserve the estate from the sea, the contract would not bind the purchaser. In one case, a