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 .
In order that the doctrine of equitable conversion may apply, it is necessary that there be an absolute obligation to convert, either immediately or at a future time, and it is not sufficient that there is a request or expression of desire to that effect, or a power to convert, with a discretion in the trustee or executor to whom the power is given, or in other persons, as to whether it shall be exercised.94 The doctrine is not inapplicable, however, provided the direction is imperative, merely because the conversion is not to take place until some specified future time,95 or because the time or manner of conversion is within the discretion of the person directed to make it.96 An imperative direction in terms to convert is not necessary, it being sufficient if an absolute intention that conversion shall take place is apparent from the whole instrument.97 tures to think, however, that the character of decedent's property at the time of his death should determine whether it is realty or personalty for the purpose of determining its situs for taxation as of that time, irespective of the terms of the will.
94. Hyeti v. Mekin, 25 Ch. Div. 735; Janes v. Throckmorton, 57 Cal. 368; Christopher v. Mungen, 61 Fla. 513, 55 So. 273; Fox v. Fox, 250 111. 384, 95 N. E. 498; Collins v. Combs, 160 Ky. 325, 169 S. W. 721; Meeker v. Forbes, 84 N. J. Eq. 271, 93 Atl. 887, affd, 98 Atl. 1086; Scholle v. Scholle, 113 N. Y. 273, 21 N. E. 84; Clifton v. Owens, 170 N. C. 607; Penfield v. Tower. 1 N. Dak. 216. 46 N. W. 413, 87 N. E. 502; Spendau v. Spendau, 136 Pa. 14, 69 Atl. 1068; Wheless v. Wheless, 92 Tenn. 293, 21 S. W. 595; Ford v. Ford, 70 Wis. 19, 5 Am. St. Rep. 117, 33 N. W. 188.
95. Massey v. Modawell, 73 Ala. 421; Reiff v. Strite, 54 Md. 298; McClure's Appeal, 72 Pa. St. 414; Ford v. Ford, 70 Wis. 19, 5 Am. St. Rep. 117, 33 N. W. 188; Collier v. Grimesey, 36 Ohio St. 17. And see cases cited post, Sec. 121, note 2.
96. Stagg v. Jackson, 1 N. Y. 206; Bell v. Bell, 25 S. C. 149; Carr v. Branch, 85 Va. 597. 8 S. E. 476; Ford v. Ford, 70 Wis. 19. 5 Am. St. Rep. 117, 33 N. W. 188; see, also, cases cited post, Sec. 121, note 1.
97. Earlom v. Saunders, Amb. 241; Ramsey v. Hanlon, 33 Fed. 425; Gardner's Appeal 81 Conn. 171, 70 Atl. 653; Brown v. Miner. 261 111. 543, 104 N. E. 150; Grove v. Willard, 280 111. 247, 117 N. E. 489; Paisley v. Holzshu, 83 Md. 325, 34 Atl. 832; Greenman v. Mc-Vey, 126 Minn. 121, Ann. Cas. 1915 D. 430, 147 N. W. 812; Power v.
The necessity of an imperative direction to eon-vert, as distinguished from a mere discretionary power to convert, in order that an equitable conversion may be recognized, arises, it would seem, from the consideration that, in the absence of such direction, the possible beneficiaries have no rights of which a court of equity can well take cognizance. For instance, if a testator empowers his executor, but does not imperatively direct him, to sell land, and provides that in case the sale is made the proceeds shall be divided between two persons named, neither of such persons has any rights as against the executor until a sale is made, nothing of which he can voluntarily dispose or which will pass on his death to his personal representative or heir. He has a mere possibility that at some time in the future he may receive money, similar to that which one may have of receiving property by descent on another's death, and this is in no sense either land or personalty.