and, vice versa, where land was to be converted into money, it was held by Lord Hardwicke, that a lease by the cestui que trust, reserving a rent to her heirs and assigns, was evidence of an intention to continue the property as real estate (a).

A person may express his election even by parol. This at least was the opinion of Lord Macclesfield (b), and apparently was actually decided in the case of Chaloner v. Butcher (c), in which, the husband having declared the money should not be laid out in land, the Court held, that, if the question concerned the right of a third person, the declarations of the husband ought not to be admitted, but, as it was between his personal and real representative, they should be read. And both Lord Thurlow (d), and Lord Eldon (e), seem to lend their sanction to the same doctrine. An obiter dictum of Lord Hardwicke to the contrary (ƒ), though supported by so illustrious a name, must therefore be considered as overruled.

Where money bears the notional impress of realty, the testator may bequeath it as so much money to be laid out in land, and the money will pass, though the will be not attested according to the Statute of Frauds(g): the will operates first by way of election, and then by way of bequest.

(a) Crabtree v. Bramble, 3 Atk. 680, see 688, 689.

(b) Edwards v. Countess of Warwick, 2 P. W. 174.

(c) Cited Crabtree v. Bramble, 3 Atk. 685.

(d) Pulteney v. Darlington, 1 B. C. C. 237.

(e) Wheldale v. Partridge, 8 Ves. 236.

(f) Bradish v. Gee, Amb. 229. (g) See the cases cited Lechmere v. Earl of Carlisle, 3 P. W. 221, note (C); and see Pulteney v. Darlington, 1 B. C. C. 235, 236.

II. The act of the trustee shall not alter the nature of the cestui que trust's estate.

At law the trustee is the absolute proprietor of the land or fund, and therefore may exercise any control or dominion over it-may convert realty into personalty, or personalty into realty; but equity, which regards a trustee in the light of a mere nominal instrument, will not permit the interest of the cestui que trust to be affected by any act of misconduct, but, as often as any wrongful conversion is made, will transfer to the new interest the quality and character of the old-will treat real estate as personal, and personal as real, as the circumstances of the case may require.

Where the cestui que trust is sui juris, every change in the nature of the property made without the authority of the beneficial owner must be considered a misfeasance; but with respect to lunacy and infancy it is necessary some distinctions should be taken.

It has been laid down as the general rule in lunacy, that the Court will not alter the condition of the lunatic's property to the prejudice of his successors; but the maxim must be received with the qualification, except it be for the benefit of the lunatic himself (h). The Chancellor takes the advice and assistance of the presumptive next of kin and presumptive heir at law in the care and management of the property (i); but through all the cases runs this prevailing principle-that the object of attention is exclusively and entirely the interest of the lunatic, without any regard to those who may have eventual rights of succession (k).

(h) Ex parte Grimstone, cited Oxenden v. Lord Compton, 4 B. C. C. 235, note, per Lord Apsley.

(i) Ex parte Phillips, 19 Ves.

123, per Lord Eldon.

(k) Oxenden v. Lord Compton, 2 Ves. jun. 72, and S. C. 4 B.C.C. 233, per Lord Thurlow; and see

"Nothing," said Lord Loughborough, "would be more dangerous or mischievous than for the Court to consider how it would affect the representatives: there would always be among them an emulation of each other, and their speculations, if the administrator were to engage in them, would mislead his attention, and confine his observation as to the interest of the only person he is bound to protect: there would be a continued running account between the personal and real estates: the Chancellor would be perpetually looking to the right or left, and the interest of the lunatic would be committed in favour of those who have no immediate interest, and whose contingent interests are left to the ordinary course of events (1)."

Upon this principle, where a lunatic was seised ex parte paterná of estate A., and ex parte materná of estate B., and the latter was subject to a mortgage, the money arising from a fall of timber upon A. was directed to be applied in discharge of the mortgage upon B.; and upon a question between the respective heirs it was held, that the representative who succeeded to A. was not entitled to any recompence from the representative who inherited B. (m).

So if the lunatic be considerably indebted, and it appears his maintenance would be better provided for, and his advantage promoted, by the sale of a real estate inconvenient and ill-conditioned, instead of exhausting

ex parte Bromfield, 1 Ves. jun. 462; ex parte Grimstone, Amb. 708; S. C. cited 2 Ves. jun. 75, note (x), and 4 B.C.C. 235, note; ex parte Phillips, 19 Ves. 123; Dormer's case, 2 P.W. 265; ex parte Chumley, 1 Ves. jun. 297;

ex parte Baker, 6 Ves. 8.

(1) Oxenden v. Lord Compton, 2 Ves. jun. 72, 73; S. C. 4 B. C. C. 233, 234.

(m) Ex parte Phillips, 19 Ves. 123, per Lord Eldon.

the personalty, the Court, on a proper representation of the case, would have no difficulty in making an order to that effect (n).

So, timber which ought to be cut on a lunatic's estate may be felled by the direction of the Court, and the proceeds may either be applied to the redemption of the land tax, or payment of debts (o), or any other purpose which the true interest of the lunatic may require; or if not wanted for any particular purpose, will go to the next of kin as personalty, and not to the heir as part of the realty (p).

Where the lands of the lunatic are in mortgage, and that whether they have descended to him subject to the charge (q), or the debt is the lunatic's own (r), the Chancellor, not ex necessitate, but feeling it to be prudent when the personal estate can afford to disincumber the real estate (s), will order the requisite sum to be applied; and the next of kin after the lunatic's decease will have no lien upon the real estate for the amount expended.

So, if it be necessary for the interest of the real estate to bring an action of trespass, resort may be had to the

(n) Ex parte Phillips, 19 Ves. 124, per Lord Eldon.

(o) Ex parte Phillips, 19 Ves. 119; Bevan's case, cited ex parte Bromfield, 1 Ves. jun. 455, 457.

(p) Ex parte Bromfield, 1 Ves. jun. 453; S. C. 3 B. C. C. 510; Oxenden v. Compton, 2 Ves. jun. 69; S.C. 4 B.C.C. 231; Shelly's case, cited 1 Ves. jun. 457; ex parte Phillips, 19 Ves. 124, per Lord Eldon. The dictum in Marquis of Anandale v. Marchioness

of Anandale, 2 Ves. 384, must be considered as overruled.

(q) Dennis v. Badd, cited Winchelsea v. Norcliffe, 1 Vern. 436; but see Weld v. Tew, Beat. 266.

(r) Ex parte Grimstone, Amb. 706; S. C., cited Oxenden v. Lord Compton, 4 B.C.C. 234; Dormer's case, 2 P.W. 262.

(s) Oxenden v. Lord Compton, 2 Ves. jun. 74, per Lord Thurlow.

lunatic's personal fund (t). And by the same rule the money of the lunatic may be laid out in improvements (u); but here the Chancellor must act tanquam bonus paterfamilias, taking every opportunity of ameliorating the estate by fair and ordinary means, such as draining, inclosures, &c. (x), erecting a fire-engine for the purpose of working a coal-mine (y), but must not engage in risks and dangerous adventures (≈). And of course the personalty may be drawn upon for necessary expenses, as repairs (a), fines for renewals of leases, or admissions to copyholds (b). But where the committees of a lunatic, who were entitled to the estate themselves after his death, laid out a sum in purchasing timber for repairs, when they ought to have cut timber on the estate, Lord Hardwicke said, that, having done so merely to serve their own interest, they should make good the disbursement to the lunatic's next of kin (c).

In the preceding cases the conversion has been for the clear benefit of the lunatic, but in general the Court will not lightly change the condition of the property, but will

(t) Oxenden v. Lord Compton, 2 Ves. jun. 72, per Lord Loughborough.

(u) Sergeson v. Sealey, 2 Atk. 414, per Lord Hardwicke; Dormer's case, 2 P. W. 262.

(x) See Justice De Grey's argument in ex parte Grimstone, cited Oxenden v. Lord Compton, 2 Ves. jun. 75, note (x).

(y) Oxenden v. Lord Compton, 2 Ves. jun. 73.

(z) Oxenden v. Lord Compton, 2 Ves. jun. 73. per Lord Loughborough.

(a) Sergeson v. Sealey, 2 Atk. 414, per Lord Hardwicke; ex parte Grimstone, Amb. 708; S.C. cited Oxenden v. Lord Compton, 4 B. C. C. 237, note, per Lord Apsley; 2 Ves. jun. 72, per Lord Loughborough; Newport's case, cited Ib.

(b) Justice De Grey's argument in ex parte Grimstone, ubi supra; but see Degg's case, cited Oxenden v. Lord Compton, 4 B. C. C. 235,

note.

(c) Ex parte Ludlow, 2 Atk.

407.

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