This change from realty to personalty is termed "equitable conversion," and is far reaching in its results and often affects the ownership for years to come. As real estate it passed by the laws of descent. As personal property it follows the statutes of distribution.

It is difficult to divide and apportion parcels of land among a number of heirs, hence it seems simpler for a testator to say:

I direct and empower my said executor to sell to the best advantage all of the real estate of which I shall die possessed, and to distribute the same equally among my five children, or if any of my children shall not be living at the time of my death, his or her children, if any, shall receive the share of the deceased parent.

If a testator merely gives a direction to sell if necessary, a sale under such circumstances does not have the effect of equitable conversion. The testator can make sure of such effect by:

I. A positive direction that lands shall be sold.

2. Making it necessary to sell lands in order to carry out the intention of the will.

3. Imposing a duty or obligation on the executor to sell in any event.

In all cases of this kind an executor's powers are closely limited by the directions of the will. He can do what it prescribes and no more. It is his power of attorney, whereby he does what the testator gives him power to do.

§ 127. Existing Contracts Relating to Realty

When a testator enters into a contract to buy realty, he intends to convert personalty-cash-into realty. Upon the signing of the contract he incurs a debt to the amount of the contract price. If this debt had been paid in full and the realty acquired by him during his life, the property would have passed as real estate. As the right under the contract to ac

quire the realty is an interest in realty, it therefore passes as real estate. But the unpaid portion of the contract price is an outstanding debt which must be paid out of the personal property of the estate, thereby fulfilling the testator's intention to convert personalty into realty. The executor must pay this debt and thus enable the heir or devisee to demand a conveyance of the property from the vendor.

If, on the other hand, the testator entered into a contract to sell realty, he intended to convert it into personalty, cash. Upon the signing of the contract, he secured an obligation on the vendee's part to pay him cash and in turn the testator's title to the realty became subject to an obligation that it should be transferred to the vendee upon receipt of the selling price. This title so encumbered passes at the time of death to the heir, who, however, can receive nothing more than the testator had, and therefore takes the land subject to the obligation to convey. The right to receive the balance of the selling price is personal property and therefore becomes part of the testator's personal estate and goes to the executor. The heir secures nothing of value when title to this realty passes to him, because the executor can compel him to convey his title to the vendee upon the latter's paying the executor the balance of the selling price.

REVIEW QUESTIONS

1. When is real estate sold? Where does real estate go on death of the owner? When may a representative collect rents? 2. When is real estate used for paying debts? When may an order to sell real estate be had?

3. In your state, what is the prescribed procedure to raise money from real estate? Should a sale of real estate be approved by the court? Why is it necessary to follow this prescribed procedure closely? May the representative buy in the property himself?

4. When an executor is directed by will to sell real estate, are the proceeds treated as real estate? What is equitable conversion? Why is real estate usually directed to be sold?

5. If a testator has signed a contract to purchase realty, who pays the price? Who takes the real estate so purchased?

6. If the contract is to sell real estate, who receives the price paid? Who has to execute the deed passing title to the land?

CHAPTER XVII

PAYING AND DELIVERING LEGACIES

§ 128. Definitions

A legacy is defined as money or other property left by will. Its synonym is a "bequest." It signifies a gift of personal property made by will as distinguished from a devise or gift of realty.'

A general legacy is a legacy in which the moneys or goods are to be taken from the mass of the property.

A specific legacy is the bequest of particular money, particular securities, or a particular thing-pointed out and distinguished from any other.

A cumulative legacy is a further legacy added to a previous legacy.

A lapsed legacy is a legacy left, say, "to my brother if living at the time of my death," and the brother dies before the testator.

A demonstrative legacy is a general legacy providing for a gift of money payable out of a specified fund, such as a certain savings bank deposit.

A residuary legacy is a legacy that includes all the property not otherwise disposed of.

A devise is a gift of real property made by will. The party who takes a devise is called the "devisee."

A legatee is the party who takes a legacy.

A legacy or a devise may be void if the party to take is uncertain. Not all corporations may take as legatees or devisees. It would depend on the corporate character and the law of the state regulating corporate powers. Subscribing wit

1 Century Dictionary.

nesses to a will are thereby disqualified to take as legatees. A person named in a will as executor would in most states be disqualified to act as executor if he had acted as a witness, but might be appointed administrator. Generally any person may take under a will.

§ 129. General Legacies

A general legacy does not call for the delivery of any particular thing. "I leave to my cousin Amos Bardsley of Salem, Massachusetts, the sum of Fifteen Hundred Dollars," calls for nothing specific and expresses a general legacy; but "I leave to my nephew Andrew Calkins the gold watch presented to me by the Directors of the Second National Bank of Belfast," is not general, for it specifies one particular object. If it had been "a gold watch," it would have been general, for any gold watch would have answered, or failing to find such an article, the executors could buy a gold watch when the time came to deliver the legacy. (But see § 137.)

§ 130. Specific Legacies

A legacy of "My law library to my partner John Hanan" would be specific. So would a legacy of "the oil painting entitled 'Sunset' by George Innes," or a legacy of "my Marmon car," or of "ten one thousand dollar bonds of the City of Cleveland, issue of 1914, numbered 521 to 530 inclusive."

Certain legal rights would depend on whether the bonds were general or specific, which makes the matter of classification of some importance. For instance, if there was deficiency of assets the general legacies would all be abated but the specific legacies would all be paid in full. Demonstrative legacies take precedence over other general legacies.

§ 131. Residuary Legacies

It is not possible usually so to distribute an estate that the specific and general legacies exactly exhaust the assets, so it