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 .
We have previously considered the doctrine that, upon the total or partial failure of a gift in trust, there will be a resulting trust or reversion, in favor of the donor or his heirs.6 The question now arises whether, if, by the terms of the gift, there were positive directions for conversion, the property will result in its original character, or in that into which it was to be converted, and to whom it will result. On a solution of this question will depend, in the case of a gift by will, whether it results in favor of testator's heirs or personal representative.
Where the purpose for which land is directed to be converted into money, or for which money is directed to be converted into land, entirely fails, whether the direction is contained in a will or in an instrument inter vivos, the land or the money results to the donor or his successors in interest in its original form, the direction for conversion being in such case utterly ineffective for any purpose; and the heir or the personal representative of the donor takes accordingly as it may be real property or personalty.7 If, for in-instance, land is devised to a trustee with directions to
4. Ward v. Arch, 15 Simons 389; Neely v. Grantham, 58 Pa. 433; Evans v. Kingsberry, 2 Rand. (Va.) 120, 14 Am. Dec. 779.
5. Ante Sec. 120, note 24.
6. Ante Sec. 107 (b).
7. 3 Pomeroy, Eq. Jur. Sec. 1170; 1 Jarmau, Wills, 587 et seq.; Ackroyd v. Smithson, 1 White & T. Lead. Cas. Eq. 1181, 1187, 1197, notes; Ripley v. Waterworth, 7 Ves. Jr. 425; Smith v. Claxton, 4 Madd. 484; Rizer v. Perry, 58 Md. 112; Roy v. Monroe, 47 N. J. Eq. 356, 20 Atl. 418; Moore v. Robbins, 53 N. J. Eq. 137, 32 Atl. 379; Read sell it and pay over the proceeds to a certain charity, and the gift to the charity is for some reason invalid, there is a resulting trust or, reversion in favor of the testator's heir, just as if no sale had been directed. In other words, the rights of decedent's heir as regards the land cannot be injuriously affected by an unsuccessful attempt on the part of decedent to give the proceeds of the sale of the land to another.
- Partial failure of disposition by will. Although there is a partial failure of the purposes for which a conversion was directed by will, a conversion is still ordinarily necessary, for the purposes which have not failed, to the same extent as if there had been no partial failure of purpose. For instance, in a leading case on the subject,8 there was a testamentary gift to trustees, with directions to sell the land and, after paying debts and legacies, to divide the balance of the proceeds among fifteen persons. The gifts to two of these persons lapsed by reason of their deaths before testator, but it was still necessary to sell all the land in order to ascertain just what amount of money was to go to each of the thirteen surviving legatees. In such a case, of partial failure of the purposes of the conversion, if the conversion directed was of land into money, so much of the land as represents the undisposed of proceeds of sale will ordinarily result to the heir or heirs of the testator, and not to the persons entitled to his personalty.9 It is land at the time of his death, when the rights of succession are fixed, and passes as land to his heir. And so, if the purposes named in the will are insufficient to exhaust the proceeds of sale of the land, so much of the land as represents the undisposed proceeds of sale will ordinarily pass to the heirs as land.10 v. Williams, 125 N. Y. 560, 21 Am. St. Rep. 748, 26 N. E. 730; Haw-ley v. James, 7 Paige (N. Y.) 213, 32 Am. Dec. 623; Appeal of Luff-berry, 125 Pa. St. 513, 17 Atl. 447.
8. Ackroyd v. Smithson, 1 Brown Ch. 503, 1 White & T. Lead.
Cas. Eq. 1171.
9. 1 Jarman, Wills, 587; Craig v. Leslie, 3 Wheat. (U. S.) 563, 4 L. Ed. 460; Wood v. Keyes, 8 Paige, 365; In re Mudderspaugh'3 Estate, 231 Pa. 376, 80 Atl. 870
R. P -29
Although a partial undisposed of interest in land directed to be sold ordinarily results to the heirs of testator, it is to be regarded as personalty in their hands, and not realty, and it will consequently pass to the personal representatives in case of the death of one of them, even though this occurs before the actual conversion takes place.11 The direction for conversion, though not operative at the time of the testator's death for the purpose of divesting the rights of the heirs, becomes operative immediately thereafter, and as it has the effect of giving the character of personalty to the interest of those who take as beneficiaries named, so it has the effect of giving that character to the interests of those who are substituted by act of the law to the benefit of the gift. Each heir is ultimately to receive, not land, but the proceeds of the sale of land, and consequently his interest is personalty.
While ordinarily, as above indicated, so much of the land directed to be sold as represents the undisposed of proceeds will result to the heir or heirs of the testator, a residuary bequest in the will may be capable of construction as including the surplus proceeds of the sale, and thereby excluding the heirs, and the courts appear to have gone very far in giving such a construction to a bequest of this character,12 a construction which would appear, in the ordinary case, not to accord with the testator's probable intention.13
10. 1 Jarman, Wills, 585; Hilton v. Hilton, 2 MacArthur, D. C. 70; Dorsey v. Dodson, 203 111. 32, 67 N. E. 395; Cronise v. Hardt, 47 Md. 433; Canfield v. Canfleid, 62 N. J. Eq. 578, 50 Atl. 471; Lindsay v. Pleasants, 4 Ired. Eq. 39 N. C. 320; Fifield v. Van Wyck, 94 Va. 557, 64 Am. St. Rep. 745, 27 S. E. 446.
11. 1 Jarman, Wills, 596; 3 Pomeroy, Eq. Jur. Sec. 1171; Ackroyd v. Smithson, 1 White & T. Lead.
Cas. Eq. 1204; Smith v. Claxton, 4 Madd. 484; Wright v. Wright, 16 Ves. Jr. 188; In re Rickerson  1 Ch. 379; Cronise v. Hardt, 47 Md. 433; Newby v. Skinner, 1 Dev. & B. Eq. 488, 31 Am. Dec. 397; Pennell's Appeal, 20 Pa. St. 515. And see Holland v. Adams, 3 Gray (Mass.) 188, 191.
12. See Page v. Leapingwell, 18 Ves. 463; Singleton v. Tomlinson. 3 App. Cas, 404; Given v. Hilton, 95 U. S. 591, 24 L. Ed. 458; HarSec. 122]
In the absence of a residuary bequest capable of such a construction, neither a direction that the land,14 nor a direction that the proceeds of the sale of land,15 shall be deemed personalty; nor such a direction joined with an express declaration that the heir at law shall not take in case of lapse,16 can properly exclude the claims of the heir, or otherwise affect the succession upon testator's death. A contrary view would not only involve the proposition that a will, which can never take effect until after testator's death, can alter the character of his property at the time of his death, hut it would also involve a repudiation of the well recognized rule17 that an heir cannot be disinherited by the mere expression in the will of an intention to disinherit him, in the absence of an effectual disposition in favor of others.
The rights of the heir as to the surplus proceeds of a sale directed by the will are obviously not affected by the fact that, before the question comes up for decision, the land has been sold as directed.18 rington v. Pier, 105 Wis. 485, 49, 50 L. R. A. 307, 76 Am. St. Rep. 924, 82 N. W. 345; Theobald, Wills (6th Ed.) 251.
13. See Prof. C. C. Langdell's remarks in 18 Harv. Law Rev. at p. 96 et seq. And Richards v. Miller, 62 111. 417.
14. See James v. Hanks, 202 111. 114, 66 N. E. 1034; Comer v. Light, 175 Ind. 367, 93 N. E. 660, 94 N. E. 325; In re Reed's Estate, 237 Pa. 125, 85 Atl. 138; Barnett's Admr. v. Barnett's Adm'r., 1 Mete (Ky.) 256. Contra: Hand v. Marcy, 28 N. J. Eq. 59; disapproved in Canfield v. Canfield. 62 N. J. Eq. 578, 50 Atl. 471; Evans' Appeal, 63
Pa. 183; Shaw v. Chambers, 48 Mich. 355, 12 N. W. 486; (dictum); Hutchings v. Davis, 68 Ohio St. 160, 67 N. E. 251, disapproved in Gerger v. Bitzer, 80 Ohio St. -, 88 N. E. 134.
15. Taylor v. Taylor, 3 De G. M. & G. 199; Collins v. Wakeman. 2 Ves. Jr. 683.
16. Fitch v. Webar, 6 Hare, 145. Contra: Lash v. Lash, 209 111. 595. 70 N. E. 1049.
17. Post Sec. 499.
18. Ackroyd v. Smithson, 1 Brown's Ch. 503; Canfield v. Can-field, 62 N. J. Eq. 578, 50 Atl. 471; Wood v. Keyes, 8 Paige, 365; Lindsay v. Pleasants, 4 Ired Eq.
[ Sec. 123
In the case of a direction in a will for the conversion of money into land, any undisposed-of portion of the money so to be converted will result, to the next of kin or residuary legatees of testator19 and will belong to them as realty or personalty, according to its nature in the view of a court of equity at the time it results.20
- Partial failure of disposition inter vivos. In the case of a partial failure of the purpose for which a conversion was directed by an instrument inter vivos, even though conversion has not actually taken place, the surplus results to the grantor or settlor in its converted character, so that, in case of his death, it passes to his legal successor in interest as determined by such character;21 the rule differing from that usually applicable in the case of a partial conversion by will, for the reason that, in the case of a conversion directed by an instrument inter vivos, the direction is operative during the donor's life, while in the case of a will the direction is not operative till death.