institutes his suit during the subsistence of that claim, or after its determination, seems to be perfectly immaterial (g).

In Walker v. Denne (h) Lord Loughborough expressed some doubt upon this doctrine. "Is there," he said,

66

any case where the heir has filed a bill merely as such, and has had money paid to him, because it was directed to be laid out in land? The idea is commonly entertained, but there are doubts about it. I do not recollect any case where the heir has said, The money ought to be laid out all the particular objects are gone, and I as heir claim the money as land for my benefit. Upon that I doubt what gives the heir a title to a subpoena in this Court between the heir and personal representative their rights are pure legal rights: chance decides what shall be real, what personal: neither has a scintilla of equity to make the property that which it is not in fact." To this reasoning of Lord Loughborough it may be replied, that, when it is said there is no equity between the real and personal representatives, the meaning is no more than this, that what is real estate at the death of the ancestor will go to the heir, and what is personal estate at the death of the testator will go to the executor; but, for the purpose of determining what is real and what is personal estate, the Court is guided, not by the legal nature of the property at the death of the owner, but, as appears in numerous instances, by the stamp and character impressed upon it in consideration of a court of equity. Thus if a mortgagee in fee die, the mortgage being

(g) See Chaplin v. Horner, 1 P. W. 483; Lechmere v. Lechmere, Cas. t. Talb. 80.

(h) 2 Ves. jun. 175, 176, 183;

and see Oxenden v. Lord Compton, Ib. 70; Lord Compton v. Oxenden, Ib. 265.

regarded as a mere security for part of the mortgagee's personal estate, the executor may call upon the heir for a conveyance of the land. On the other hand, if the mortgagor die, the heir of the mortgagor may call on the executor to discharge the incumbrance out of the personal assets. So if a person contract for the sale of an estate, and die before the completion of the sale, the legal fee descends upon the heir, but the purchase money passes to the executor; and, on the other hand, if a person contract for the purchase of an estate, and die, the executor must pay the money, but the heir is entitled to the purchase. Thus, in the words of Lord Talbot, "Where the dispute is between the two representatives of the deceased, the one of his real, the other of his personal estate, the heir's being but a volunteer in regard to his ancestor will not exclude him from the aid of the Court, for though the question is between two volunteers, the Court will determine which way the right is, and will decree accordingly (i)." ." "I am disposed," said Lord Eldon, "to say, notwithstanding the opinion of Lord Rosslyn in Walker v. Denne, and some other modern authorities, that if the instrument be taken to impress a fund with real qualities immediately upon the execution, in the question between the heir and executor, the money being once clearly and plainly impressed with real uses as land, and one of those uses being for the benefit of the heir, it will remain for his benefit, and it is not correct to say the Court does not interpose between volunteers, if they give to the executor that money which the instrument has given to the heir (k)." And Sir W. Grant

(i) Lechmere v. Lechmere, Cas.

t. Talb. 90.

(k) Wheldale v. Partridge, 8 Ves. 235.

to the same effect observed, "There is no weight in the circumstance that the property is found in the shape of money or land, for the character is to be found in the deed. The opinion of Lord Rosslyn that property was to be taken as it happened to be at the death of the party from whom the representatives claimed, was much doubted by Lord Eldon, who held, in which I perfectly concur, it must be considered as being in the state in which it ought to be. Lord Rosslyn's rule was new, and not according to prior cases (1)."

2. But if A. die, leaving neither wife nor issue, so that, to use the technical expression, the money is " at home," that is, A. at the time of his death is the absolute and exclusive owner, and there is no outstanding right in another person, in this case the real quality of the money has become merged and extinguished, and on the death of A. the heir has no equity to call upon the executor. To keep on foot the notional conversion of money into land, it is evident there must be a right in some one to insist upon the actual conversion; but if A. be in possession of 20,000l. upon trust to lay out in a purchase of lands to be settled to the use of himself and his heirs, the right and the thing both centering in the same person, there is nobody to sue, and it follows the action is extinguished (m).

The decision in the much litigated case of Chichester v. Bickerstaff (n) amounted probably to no more than this. On the marriage of Sir J. Chichester with the daughter of Sir C. Bickerstaff, the latter agreed to pay 15007. by way

(1) Thornton v. Hawley, 10 Ves. 138; Kirkman v. Miles, 13 Ves. 339.

(m) See Pulteney v. Darlington,

1 B. C. C. 237.

(n) 2 Vern. 295; S. C. cited Pulteney v. Darlington, 7 B. P. C.

554.

of portion, which, together with 1500l. more to be advanced by Sir John Chichester within three years after the marriage, was to be invested in lands to be settled on Sir John for life, remainder to his wife for life, remainder to the issue in tail, remainder to Sir John in fee. Sir John and his lady within one year after the marriage both died without issue, the husband having survived. Sir John by his will made Sir C. Bickerstaff his executor, and bequeathed the residue of his personal estate, after payment of his debts, &c., to Frances Chichester his sister. The heir at law of Sir John brought his bill against Sir Charles to compel him to pay the 1500l., insisting that by virtue of the marriage articles the money ought to be looked upon as land, and therefore belonged to him as heir. Lord Somers said, "This money, though once bound by the articles, yet when the wife died without issue became free again, and was under the power and dispose of Sir John, as the land would likewise have been in case a purchase had been made pursuant to the articles, and therefore would have been assets to a creditor, and must have gone to the executor or administrator of Sir John; and this is much stronger where there is a residuary legatee;" and therefore dismissed the bill. Then follows what is apparently the note of the reporter, viz., that "money shall in many cases be considered as land when bound by articles in order to a purchase, but whilst it remains still money, and no purchase made, the same shall be deemed as part of the personal estate of such person, who might have aliened the land in case a purchase had been made."

In this case it has been commonly, but surely without reason, supposed, that the suit of the plaintiff was for the 15007. which Sir Charles had articled to pay,

and in consequence of this misconception the authority of the decision has repeatedly been called into question. Thus Sir J. Jekyll, overlooking the very material circumstance that Sir Charles had been appointed the executor of the testator, observes, "It is remarkable with respect to this case, that the wife died within three years after the marriage, during which period the purchase was to be made, so that the time was not come within which the money was to be laid out; and till then it continued money; and possibly the Court had some evidence to induce them to believe, that Sir John Chichester looked on the money as personal estate; and if this does not distinguish it from other cases, I doubt, in opposition to so many decrees, the resolution here given would hardly be maintainable (o)." And Lord Talbot was apparently under the same misapprehension, for he observes," Had the money in the case before me been deposited in the hands of trustees, it must have been looked upon as real estate, and the heir have been entitled. This seems to be granted, and no authority against it but what has been collected from the case of Chichester v. Bickerstaff. It is probable the Court went upon some reason, which induced it to think that Sir John looked upon that money as personal estate, for otherwise the authority of that case is not to be maintained, being contrary to all former resolutions (p)." But Lord Thurlow viewed the case in a different light, and evidently considered the 15007. sought by the bill of the plaintiff to be the 1500l. articled to be paid by the testator himself, and so payable out of his assets in the hands of Sir

(0) Lechmere v. Carlisle, 3 P. W. 221.

(p) Lechmere v. Lechmere, Cas. t. Talb. 90.