This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
While a court of common law will not regard as land money directed to be turned into land, or as money land directed to be turned into money, until the conversion has actually result that the interests of the beneficiaries of the proposed settlement are, even before the land is purchased, regarded as partaking of the nature of land.74 occurred,68 a different rule prevails in equity, under the maxim that equity "regards that as done which ought to be done," and there, it has been said, "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,-whether by will, by way of contract, marriage articles, settlement, or otherwise, and whether the money is actually deposited, or only covenanted to be paid; whether the land is actually conveyed, or only agreed to be conveyed."69
65. Perry, Trusts, Sec.Sec. 718-722; Jackson v. Phillips, 14 Allen (Mass.) 539, 574.
66-67. 1 Perry, Trusts, Sec.Sec. 718-721; Fontain v. Ravenel, 17 How. (U. S.) 369, 384, 15 L. Ed. 80;
Moore's Heirs v. Moore's Devisees and Executors, 4 Dana (Ky.) 365; Jackson v. Phillips, 14 Allen (Mass.) 539, 576; St. James Orphan Asylum v. Shelby, 60 Neb. 796, 83 Am. St. Rep. 553, 84 N. W.
The doctrine by force of which these results are obtained, or are said to be obtained, is known as "equitable conversion." It is in a very restricted sense, however, if at all, that land directed to be converted into money is, even by a court of equity, considered as money, or money directed to be converted into land as land. And the language above quoted, though frequently referred to approvingly by courts of high standing, is perhaps calculated to obscure, rather than to elucidate, the real nature of the doctrine, which is, it is conceived, more correctly indicated by the quotation in the note below70 to the effect that one who is in terms given money is regarded in equity as acquiring money rather than land by such gift, although the money is to be obtained by the sale of the donor's land, and that one who
273; Harrington v. Pier. 105 Wis. 485, 50 L. R. A. 307, 76 Am. St. Rep. 924, 82 N. W. 345.
68. Teneick v. Flagg, 29 N. J. L. 25; Foster's Appeal, 74 Pa. St. 391, 15 Am. Rep. 541.
69. Fletcher v. Ashburner, 1 Brown Ch. 497, 1 White & T. Lead. Cas. Eq. 1118.
70. "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 adevise of land, which a testator by his will directs to be purchased, will pass as an interest in the land itself, without regard to the character of the fund out of which the purchase is to be made." Justice Washington is in terms given land is regarded in equity as acquiring land rather than money, although the land is to be procured with the donor's money.
The most usual application of the doctrine occurs in the case of a devise of land to a trustee, with directions for its sale and the distribution of the proceeds of sale among persons named, the effect being that the beneficial interests of the persons so named will be regarded, even before the sale, as personalty and not as land, and the disposition and devolution of such interests will be determined accordingly.71 And, conversely, if money is bequeathed with directions that it be invested in land for the benefit of particular persons, the interests of such persons will, even before the investment is made, be regarded as having the character of land rather than of money.72
The doctrine has quite frequently been applied in connection with conveyances of land to trustees, to be sold by them, and in such case the interests of the persons beneficially interested in the sale are regarded as having the character of personalty from the time of the delivery of the conveyance.73
The doctrine has been applied in England to marriage articles, whereby one of the parties agrees to lay out a named sum of money in the purchase of land, the land to be settled in a particular manner, with the in Craig v. Leslie, 3 Wheat. (U. S.) 563, 4 L. Ed. 460.
71. Craig v. Leslie, 3 Wheat. (U. S.) 564, L. Ed. 460; Baker v. Copenbarger, 15 111. 103, 58 Am. Dec. 600; Rankin v. Rankin, 36 111. 293, 87 Am. Dec. 205; Talbot v. Snodgrass, 124 Iowa, 681, 100 N. W. 500; Bramhall v. Ferris, 14 N. Y. 41, 67 Am. Dec. 113; Proctor v. Ferebee, 1 Ired. Eq. (N. C.) 143, 36 Am. Dec. 34; Morrow v. Bren-izer 2 Rawle (Pa.) 185.
72. 1 Jarman, Wills 548; Jennings v. Smith, 29 111. 116; Collins v. Champ, 15 B. Mon. (Ky.) 95, 61 Am. Dec. 179; Lorillard v. Coster, 5 Paige 172; Hannah v. Swarner, 3 Watts & S. (Pa.) 223, 38 Am. Dec. 754.
73. Turner v. Davis, 41 Ark. 270; Paisley v. Holzshu, 83 Md. 325, 34 Atl. 832; Hamilton v. Miller, 31 Ohio St. 87; Hunter v. Anderson, 152 ca St. 386, 25 Atl. 538; Siter v. McClanachan, 2 Gratt. (Va.) 280; Zane v. Saw-tell, 11 W. Va. 43.
While the direction for conversion, by force of which an equitable conversion is effected, ordinarily occurs in connection with the creation of a trust, the trustee being the one named to convert, this is not necessarily so, and the executor may be named for the purpose, without being given the legal title.