16 U.S. 563 | SCOTUS | 1818
delivered the opinion of the court. The incapacity of an alien to take, and to hold beneficially, a legal or equitable estate in real property, is not disputed by the counsel for the plaintiff; and it is admitted by the counsel for the state of
The settled doctrine of the courts of equity corres1 J pond with this obvious construction of wills, as as of other 'instruments, whereby land is directed to be turned into money, or money into land, for benefit of those for whose use the conversion is ded to be made. In the case of Fletcher v. Ashburner, (1 Bro. Ch. Cas. 497.) the master of the rolls says, that “nothing is ’ better established than this principle, that money directed to be employed in the purchase of land, and land directed to be sold and turned into money, are to be considered as that species^ of property into which they are'directed to be converted, and this, in whatever manner the direction is given.” He adds, “the owner of the fund, or the contracting parties,' may make land money, or money
The principle upon which the whole of this doctrine is founded is, that a-court of equity, regarding the substance, and not the mere forms and circumstances of agreements and other instruments, considers things directed or agreed to-be done, as having been actually performed, where nothing has intervened which ought tó prevent a performance. This qualification of. the more concise and general rule, that equity considers that to be done which is agreed to' be- done, will comprehend the cases which coia¡e under this head of eTli{D
Thus, where the whole beneficial interest in the mo- . . . , ney in the one case, or in the land m the other, belongs to the person for whose use it is given, a court of equity will not compel the trustee to execute the -trust' against the wishes of the cestuy que trust, but will per-n _ .si mit him to'take the money or the ■ land, if he elect to" do so before .the conversion has' actually been made : this election he may make, as well by acts or dec" c^earty indicating á d termination to that effeet,-'as by application to a court of equity. It is this election, and not the mere right to make it, which changes the character of the estate so as to make it real or personal, at the will of the party entitled to the beneficial interest.
time. If this election be not made in time to stamp the property with a character different from that which the will or other instrument gives it, the latter accompanies it, with all its legal consequences, into the hands of those entitled to it in that character. So that in case of the death of the cestuy que trust, out having determined his election, the property, will pass to his heirs or personal representatives, in the same manner as it would have done had the trust been executed, and the .conversion actually made in his life
In the case of Kirkman v. Mills, (13 Ves.) which was a devise of real estate to trustees %npon trust to sell,'and the'moneys arising, as well as the rents profits till the sale, tobe equally divided between the testators, three daughters, A. B. and C.' The estate' was, upon the death of A. B. and C., considered and treated as personal property, notwithstanding the jcestuy que trusts, after the death of the testator, had entered upon, and occupied the land for about twro years prior to their deaths; but no steps had been taken by them, or by the trustees, to sell, nor had any requisition to that-effect been made by the former to the latter. The master of the rolls was of opinion that the occupation of the land for two years was too short to presume an election. He adds, “the opinion of Lord Rósslyn, that property was to be taken as it happened to be at the death of the party frorp whom the representative claims, had been much doubted by Lord Eldon, who held, that without some act, it must be considered as be.ing in the state in
The same doctrinéis laid down and maintáined in the.case of Edwards v. The Countess of Warwick (2 P. Wms. 171.) which was a covenant on marriage to invest 10,000Z., part ofthe lady’s fortune, in the pur . .chase of land in fee, to be settled on the husband fo life, remainder to his first and every other son in tai male, remainder to the husband in fee. The only-son of this marriage having died without issue, and 'in testate, and the investment ofthe money not having been made during his life, the chancellor decided that the money passed to the heir at law ; tha,t it was in the election of the son to have made this, money, or to "have disposed of it as such, and that, therefore, even his parol disposition of it would have been regarded i but that something to determine the election must be done.
This doctrine, so veil established by the cases which have been referred to, and by many others' which it is unnecessary to mention, seems to be' conclu . ■ . ,. , . , ,, . . . ., , sive Upon the question which this court is called upon decide, and would render any farther investigation ofit useless, .were it not for the case of Roper v. Radcliffe, which was cited, and mainly relied upon, the counsel for the state of Virginia.
The short statement of that case' is as follows j John Roper conveyed all his lands to trustees and their heirs, in trust, to sell the same, and out ofthe proceeds, and of the rents and profits till sale, to pay certain debts, and the overplus of the money to be paid as he, the said John Roper, by his will or other
Upon a bill filed by W. C. and T. R. against the heir at law of John Roper, and -the other trustees, praying to have the'trust executed, and the residue of the money arising from the sale-of the'.lands to be paid over to them ; the heir at law opposed the execution tpf the trust, and claimed the land as a resulting trust,* upon the ground of the incapacity of*Constable and Radcliffe to take; théy being papists. The decrée-of ,the court of chancery, -which was in favour of the papists, was, upon appeal to the house of lords, reversed' and the title of the heir at law sustained; six judges against five, being in his favour.
Without stating at large the opinion upon which the reversal took place, this court will proceed, 1st; To examine thu general principles laid down in that'opinion ; and then, 2d. The case itself, so far as it has been' pressed upon us as an authority .to rule the question be • fore the court.
In performing the first part of this undertaking, it will not be necessary to' question any one of the premises laid down. in that opinion. They are,
But even in cases of resulting trusts, for the fit of the heir at law, it is settled that if the . of the testator appears to have been to stamp upon the proceeds of the land described to be sold, the quality of personalty, not only to subserve the ticular purposes of the will, but to all intents, the r r ’ claim of the heir at law to a resulting trust is ed, and the estate is considered to be personal. This was decided in the case of Yeates v. Compton, (2 P. Wms. 308.) in which the chancellor says, that intention of, the will was to give away all from the heir, and to turn the land into personal estate, and that this was to be taken as it was at the testator’S death, and ought not to be altered by any subsequent accident, and decreed the heir to join in the sale •f. the • land, and the money. arising therefrom to be
■' It is evident, therefore, from a view of the above bases, that the title of the heir to a resulting trust can never arise, except when something is left undisposed of, either by some defect in the will, or by some subsequent lapse, which prevents the devise from taking effect; and not even then,-, if it appears that-the in-. tent-ion of the. testator wa's' to change the nature of the estate from land to money, absolutely and entirely, and not merely to serve the purposes of the will. But the ground upon which the title of the heir rests is, that whatever is not disposed of remains to him, and partakes of the o'ld use, as if it had not been directed to.be sold.
The third proposition laid down in the case of Roper v. Radcliffe, is, that equity will extend, the same privilege to the residr.ary legatee which is allowed
This has, in effect, been admitted in the preceding part of this opinion; because if the cestui que trust, of the whole beneficial interest in the mopey to- arise trom the sale of the land, may claim this privilege, it follows, necessarily, that the residuary legatee because he is,, in effect,, the beneficial' owner the whole, charged with'the 'debts and legacies., from which he will be permitted to discharge it, by ing the debts and legacies, or may claim so much the real estate as-may not be necessary for that pur- • pose.
But the court cannot accede to the which, in. Roper v. Radcliffe, is deduced from the establishraent of the above principles. That sion is, that in respect to the residuary legatee, such a devise shall be deemed as land in equity, though in respect to the creditors and specific legatees it is . , • , , . • de&med as money. It. is admitted, with this qualm. cálion, that, if the residuary legatee thinks proper to avail himself of the privilege of taking it as land, by fáakihg an election in his life time, the property will then assume the character of land. But. if. he does liót máte this election, the property .retains its racter of personalty to every intent and purpose. — The cases before cite'd seem to the court to be'conclusive Xtpon this point; and none were referred to, or have come under the view of the court, which
Aa to the idea that the ’character of the estate is affected by this right of election whether the right be claimed, or not, it appears to -be as repugnant to reason, as we think it has. been shown to be, to principle and authorities. .Before any thing can be made of the proposition, it. should be shown that this right or privilege of election is so indissolubly united with the devise, hs to constitute a part of it, and that it may be exercised in all_ cases, and under all circumstances.— This was, indeed contended for with great ingenuity and abilities by the counsel for the state of Virginia, blit it was not proved io the satisfaction of the court.
It certainly is not true, that equity will extend this privilege in all cases to the cestui que trust It will be refused if, he be an infant. In the case of Seely v. Jago, (1 P. Wms. 389,) where money, was devised to belaid out inlandnn fee, to be séttledJon'A. B. and C. and . their heirs, equally to be divided;. On the death of A., his infant heir, together with B. and C., filed their, bill claiming to . have the money, which was decreed accordingly as to B. and C.; .but the share of the infant was ordered to be puf out for: his benefit,, and the reason .assigned was, that he was incapable if marking an election, and that such election, if permitted, would, in case of his death, be prejudicial. to his heir.
In the case of Foone v. Blount, (Cowp. 467.) ItOjd Mansfield,.who is-compelled to acknowledge-the authority of Roper v. Radcliffe in parallel cases,
The case of Walker v. Denne, (2 Ves. Jun. 170.) seems to apply with great force to this part of our subject. The testator directed money tobe laid out in lands, tenements, and hereditaments, or on long terms, with limitations applicable to real estate. The money not having been laid out, the crown, on failure of heirs, claimed the moneyas land. It was decided that the crown had no equity against the next of kin to have the money laid out in real estate in order to claim it by escheat. It was added, that the devisees, oh becoming absolutely entitled, have the option given by the will'; and a déed of appointment by one of the cestui que trusts, though nfeme covert, was held a sufficient indication of her intention that it should continue personal, against her-heir claiming it as ineffectually disposed of for want of her examination. This case is peculiarly strong, from the circumstance, that the electtion is embodied in the devise itself; but this was •not enough, because the crown had no equity to force an election to be made for the purpose of producing an escheat.
Equity would surely proceed contrary, to its regular course, and . the principles which universally govern U, to allow the right of election where it is dt
The incapacities of a papist under the English statute di 11 and Wm. III. c. 4, and of an alien .at *aw> are extremely dissimilar. ^ The former is incapable to take by purchase, any lands, or profits out of lands ; and all estates, terms, and any other in? ■forests ox profits whatsoever out of lands, to by, mac/e, Suffered, or done, to, or for thé use of such person? or upon any. trust for him., or to, or for the benefit, or, relief.of any such person,^are declared by the statute, to be utterly void.
Thus, it appears' that he cannot even take. His. incapacity is not copfinert to- land, b.u.t. to any profit, interest, benefit, or relief,"in or out .of it. He is not |p?ly disabled .ftom..takiqg.. csr. haying the benefit ofiany
Now, what .is the situation of an alien? He can not only take an interest in - land, but a freehold interest in the land itself, and may hold it against all the world but the king, and even against him until office found, and he is not accountable for -the rents and profits previously received.
It may be further observed, that the case of Roper v. Radcliffe has never, in England, been applied to the case of aliens; that if s authority has been'submit' ted to with reluctance, and is. strictly confined in its application to cases precisely parrallel to it. .Lord Mansfield, in.the case-of Foone v. Blount, speaks of it with marked disapprobation; and we know, that had Lord Trevor been present, and declared the opin. ion he had before .entertained, the judges would have been equally divided.
The case of the Attorney General and Lqrd Weymouth, (Ambler. 20.) was also pressed upon the court, as strongly supporting that of Roper v. Radcliffe, and as bearing upon the present case.
- The fiist of these propositions might be ' admitted ; although it is certain that the mortmain act, upon which that case was decided, is even stronger in its expression than the statute against Papists, and the chancellor so considers it; for, he says, whether the surplus be considered as money or land, it is just the ¿ame thing, the statute making void all charges-and encumbrances on land, for the benefit of a charity.
But if this case wege,. in all respects, the same as Roper v. Radcliffe, the observations which have been made upon the latter, would all apply to it. It may be remarked, however, that in this case, the chancellor avoids expressingany opinion upon theques* tiont whether the jjaoney to wise from the sake of
Upbn the whqle, we are unaruinnudy of opinion, that the legacy given to Thomas Craig, in the will of Robert Ciaig, is to be consi.lere.1 as a bequest of personal estate, which he is capable of taking for his own benefit.
Certificate accordingly.
Vide ante, p. 12. Jackson ex dem. State of New-York v. Clarke, note e.