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 .
On the death of the vendor the land passes to his heir or devisee subject to the obligation to which it was subject in the vendor's hands, to convey in accordance with the contract.58 On the other hand the right to receive the purchase money, being a personal chose in action, passes to the vendor's personal representative,59 and the heir or devisee, although he may be compelled, either by the purchaser,60 or the personal representative of the venin Editorial note in 23 Yale Law Journ. 266.
57a. Post Sec. 413, notes 81-85.
58. Lysaght v. Edwards, L. R. 3 Ch. Div. 499; Masterson v. Pul-len, 62 Ala. 145; Coles v. Feeney, 52 N. J. Eq. 493, 29 Atl. 172: Rock-land-Rockport Lime Co. v. Leary, 203 N. Y. 469, L. R. A. 1916 F. 352, Ann. Cas. 1913 B. 62, 97 N. E. 43; Vincent v. Huff's Lessee, 8 Serg. & R. 381; Hibbert v. Aylott, 52 Tex. 530; And see cases cited post notes 60, 61. In some states the executor or adminstrator is authorized by statute to make a conveyance of land to one to whom his decedent had contracted to sell it. See e. g. Adams v. Harris, 47 Miss. 144; White v. Hooper, 6 Jones N. C.
152; Park v. Marshall, 4 Watts. (Pa.) 382; Bartlett v. Watson, 3 Sneed (Tenn.) 287; Jones v. Taylor, 7 Tex. 240, 56 Am. Dec. 48.
59. Story, Eq. Jur. Sec.Sec. 789, 790, 1212, 1213; Farrar v. Earl of Winterton, 5 Beav. 1; Robinson v. Appleton, 124 111. 276, 15 N. E. 761; Rockland-Rockport Lime Co. v. Leary, 203 N. Y. 469 L. R. A. 1916 F. 352, Ann. Cas. 1913 B. 62, 97 N. E. 43; Bender v. Lucken-bach, 162 Pa. 18, 29 Atl. 295, 296; Bowen v. Lansing, 129 Mich. 117, 57 L. R. 43, 95 Am. St. Rep. 427, 88 N. W. 384.
60. Moore v. Murrah, 40 Ala. 573; Rain v. Roper, 15 Fla. 121; Duncan v. Wickliffe, 5 111. 452; McQuitty v. Wilhite, 218 Mo. 586,
[Sec. 127 dor,61 to make a conveyance to the purchaser, acquires no benefit from so doing.
On the death of the purchaser, his right in equity to compel a conveyance of the land is regarded as pass-ins;' as land to his heir or devisee,62 while the obligation to pay the purchase price devolves upon the personal representative, as the person liable on the contracts of decedent.63
A contract for the sale of land made by one who had previously executed a will disposing of such land, since it subjects the land to an obligation to convey to the purchaser, has ordinarily the effect of defeating the devise except as regards the bare legal title, which passes to the heir subject to such obligation.64 And so a devise of land which the testator had, before the execution of the will, contracted to convey, obviously passes the land subject to the obligation to convey.65
117 S. W. 730; Kidder v. Barr, 35 N. H. 235; Collins v. Leary, 14 N. J. 852, 71 Atl. 003; Hale v. Darter, 5 Humph. (Tenn.) 79; Gallatin Land etc. Co. v. Davis, 44 W Va. 109, 28 S. E. 747; Morgan v. Morgan, 2 Wheat. (U. S.) 290, 4 L. Ed. 242.
61. Harris v. Johnson, 176 Ala. 445, 58 So. 426; Hurst v. Hensley, 7 Blackf. (Ind.) 373; Butman v. Butman, 213 111. 104, 72 N. E. 812; Miller v. Miller, 25 N. J. Eq. 354; Mitchell v. Shell, 49 Miss. 118; Haar v. Schloss, 168 N. C. 97, 83 S. E. 306.
62. Schmuttgen v. Frank, 213 Fed. 440, 130 C. C. A. 76- Hill v. Heard, 104 Ark. 23 148 S. W. 254, 42 L. R. A. (N. S.) 446 Ann. Cas. 1914 C. 403, 148 S. W. 254; Hadden v. Thompson, 118 Ga. 207, 44 S. E. 1001; Healey v. Simpson, 113 Mo. 340. 20 S. W. 881; Mauzy v. Hin-riQks, 89 Neb. 280, 131 N. W. 218; purchase which is exercised after the" death of the vendor, the giver of the option. In such a case the right to the purchase money has been regarded as passing to the vendor's personal representative and not to his heir, although there was actually no completed contract, susceptible of specific performance, at the time of the vendor's death. Such a view, that the money paid as a result of an option contract entered into by the deceased owner of land, and as a condition precedent to the performance thereof, though by his successor in interest, belongs, as personal property, to his personal representative, is perhaps a reasonable one,70 but the judicial attempts to support it on the theory of equitable conversion are by no means satisfactory, it being said that although the conversion does not take place until the exercise of the option, that is, until after the vendor's death, the conversion is to be regarded as relating back to the time of the giving of the option by the vendor.71
Young v. Young, 45 N. J.Eq. 27, 16 Atl. 921; Rutherford v. Green, 37 N C. 121; Zenske v. Zenske, 62 Ore. 46, 124 Pac. 203; Davenport v Latimer, 53 S. C. 363, 31 S. E. 630.
63. 1 Jarman, Wills, 51; Buck-master v. Harrop, 7 Ves. 341; Jones v. Hert, 192 Ala. Ill, 68 So. 259; Champion v. Brown, 6 Johns. Ch. 398, 10 Am. Dec. 343; House v. Dexter, 9 Mich. 246; Weldenbaum v. Raphael, 83 N. J. 17, 90 Atl. 683; Williams v. Hassell, 73 N. C. 174; Riegelman's Estate, 174 Pa.. 476, 34 Atl. 120.
64. 1 Jarman, Wills, 129; Far-rar v. Earl of Winterton, 5 Beav. 1; Watts v. Watts, L. R. 17 Eq. 219; Blair v. Snodgrass, 1 Sneed (Tenn.) 1; Walton v. Walton, 7 Johns. Ch. 258, 1 Am. Dec. 456; Rose v. Jessup, 19 Pa. 280.
65. 1 Jarman, Wills, 654; Wall v. Bright, 1 Jac. & W. 494; NewSec. 128]
A specific devise of land is adeemed by the making, after the execution of the will, of a contract for the sale of the land, and the devise will not ordinarily be effective to carry the right to the purchase money.66 A specific devise in a will executed after the making of a contract for the sale of the land devised will prima facie be construed as intended to give to the donee named the proceeds of sale.67