The opinion of the Court was delivered by
Sergeant,, J.
The first question which has been argued in this case is, the proper construction and effect to be given to the contract of July 10th, 1818, upon which the claim of the appellant to render the estate of William Tilghman liable, altogether depends. This point has been so carefully examined by the judges of the Circuit Court of the United States for this district, in the case of Tilghman and Wife v. Tilghman’s Executors, reported 1 Baldw. 464, that it is unnecessary to do more than refer to the reasons there given, as we concur entirely in the opinions delivered by the judges, that this contract was not an obligation on the part of of William Tilghman to pay the portion of thirty thousand dollars,,out of his own estate, at all events, but an arrangement, to raise it out of his daughter’s real estate, of which he was tenant by the curtesy, by a sale to be made after she should arrive at the age of twenty-one ; and as this arrangement failed to take effect in consequence of her decease shortly after that period, without any act or default of William Tilghman, but by events that were unavoidable, the provision was, so far as it was not in part executed, defeated.
[64]*64The next question arises on the claim of Benjamin Chew, Jr., as administrator of his late wife, to the sum of 7500 dollars, which money, he alleges, was received by Wm. Tilghman in his lifetime, from sales of real estate in Northampton county that had belonged to William Tilghman’s late wife, and of which he was tenant by the curtesy. These sales were made under the power vested in Wm. Tilghman by an act of assembly passed the 3d of April, 1790. By the 5th section of this act, after reciting that the said William Tilghman is seised for life, as tenant by the curtesy, with remainder in fee simple to his said child, of part of the town of Northampton, and of lands adjoining the said town, and that it will be a benefit both to the public and to the said William Tilghman and his said child, that the lots already laid out in the said town, or which may be laid out on lands adjoining thereto, should be conveyed to such persons as may be willing to purchase the same in fee simple, reserving an annual ground-rent charged thereon as has been usual, it then enacts, that “ the said Wm. Tilghman shall be and is hereby autho-rised, during the minority of his said child, to sell and convey in fee simple, to such persons as he shall think proper, any lots lying within the aforesaid part of the said town of Northampton, or to be laid out in lands of which he is seised as aforesaid, adjoining the said town; provided, that there be .reserved a perpetual ground-rent of at least two dollars, issuing out of and charged on each lot, to be paid to the said William Tilghman for his life, with remainder in fee simple to the heirs of his said late wife.” Under this power, William Tilghman made sale, from time to time, of lots and lands coming within the description mentioned in the act, on which he respectively reserved ground-rents of two dollars per annum in the manner prescribed ; but also received in hand, or contracted to receive gross sums on many of the sales, in addition to the ground-rent stipulated to be paid. The exact amount of the whole money thus received was a matter disputed in this cause: the appellant alleging it to have been 7500 dollars, and claiming the same'with-interest; the appellees stating it at 5000 dollars or less.
The question is, how this money in the hands of William Tilgh-man at the time of his death, is to be considered, whether as personal or real estate. If the former, it passed to B. Chew, Jr., in right of his late wife, who died before her father, William Tilghman ; but, if it is real estate, then it is claimed by the heirs of Wm. Tilghman’s former wife, her daughter and grandchild having both, died before Wm. Tilghman, and his estate by the curtesy having prevented the claim of B. Chew, Jr., as tenant by the curtesy.
If sales by William Tilghman in the mode above-mentioned, were good, (and we must now take them to be so,) they could only be valid because they were made under the power conferred by the act of assembly. Without such an act, Wm. Tilghma.n could have conveyed no more than bis life-estate; and at his decease, as events [65]*65have transpired, the lots and lands would have descended to the heirs of Mrs. Tilghman. No private act of assembly could have been procured to authorise a tenant by the curtesy to sell lands, without investing the proceeds of the sales in the same manner as the title to the land was held; and that object the act in question attained, by directing that ground-rents should be reserved out of the lands when sold, and that those ground-rents should be payable to the tenant by the curtesy during his life, and after his decease, to the heirs of his deceased wife, — thus substituting a ground-rent issuing out of the land for the income or profits of the land. Thus far all is clear enough. But what is to be done with the surplus money, beyond the amount of the ground-rents ? As to this there is no legislation ; the act is- silent. It appears to me, that we have no other rule to go by than that by which all other conveyances are construed; and that such an act of assembly is to be construed like other conveyances, by the established principles of law and equity in relation to them; for a private act of assembly for such purpose is but a mode of assurance. Private acts of parliament, says Blackstone, are, especially of late years, become a very common mode of assurance. They are looked on rather as a private conveyance, than as the solemn act of the legislature. A general saving is constantly added, at the close of the bill, of the right and interest of all persons whatsoever, except those whose consent is given or purchased, and who are therein particularly' named, though it hath been holden, that even if such saving be omitted, the act shall bind none but the parties. 2 Bl. Com. 344, 345, 346.
Then the case is, that in a conveyance a power is given to sell real estate, and raise a sum of money by passing the fee, but the conveyance is silent as to the nature or disposition of a part of that money. Is that money personalty, or does it still partake of the nature of real estate 1 In the conversion of real estate into personalty by will, the rule is well settled, that if executors be empowered by will to sell real estate for cértain purposes, such for instance, for the payment of debts,- or raising portions; and the sale is made, but a surplus remains undisposed of; whether that is occasioned by the silence of the testator, or by lapse, or other cause of inefficiency in the will, the heir at law takes the residue as ’ he would have taken the real estate. Leigh & Dalz. on Conversion, 92, and cases. So here, if the act of assembly empowers the tenant for life to sell a fee simple, reserving a ground-rent-for part of the consideration and receiving a gross sum for the surplus; and from silence on the part .of the legislature who create the power, no disposition is made of such sum; it continues real estate under the same limitations and restrictions as it before possessed, until it is subsequently impressed with the character of personalty by the owner; and that owner must be either one holding the absolute title in fee, or all the persons holding the different estates composing-the fee. There is [66]
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The opinion of the Court was delivered by
Sergeant,, J.
The first question which has been argued in this case is, the proper construction and effect to be given to the contract of July 10th, 1818, upon which the claim of the appellant to render the estate of William Tilghman liable, altogether depends. This point has been so carefully examined by the judges of the Circuit Court of the United States for this district, in the case of Tilghman and Wife v. Tilghman’s Executors, reported 1 Baldw. 464, that it is unnecessary to do more than refer to the reasons there given, as we concur entirely in the opinions delivered by the judges, that this contract was not an obligation on the part of of William Tilghman to pay the portion of thirty thousand dollars,,out of his own estate, at all events, but an arrangement, to raise it out of his daughter’s real estate, of which he was tenant by the curtesy, by a sale to be made after she should arrive at the age of twenty-one ; and as this arrangement failed to take effect in consequence of her decease shortly after that period, without any act or default of William Tilghman, but by events that were unavoidable, the provision was, so far as it was not in part executed, defeated.
[64]*64The next question arises on the claim of Benjamin Chew, Jr., as administrator of his late wife, to the sum of 7500 dollars, which money, he alleges, was received by Wm. Tilghman in his lifetime, from sales of real estate in Northampton county that had belonged to William Tilghman’s late wife, and of which he was tenant by the curtesy. These sales were made under the power vested in Wm. Tilghman by an act of assembly passed the 3d of April, 1790. By the 5th section of this act, after reciting that the said William Tilghman is seised for life, as tenant by the curtesy, with remainder in fee simple to his said child, of part of the town of Northampton, and of lands adjoining the said town, and that it will be a benefit both to the public and to the said William Tilghman and his said child, that the lots already laid out in the said town, or which may be laid out on lands adjoining thereto, should be conveyed to such persons as may be willing to purchase the same in fee simple, reserving an annual ground-rent charged thereon as has been usual, it then enacts, that “ the said Wm. Tilghman shall be and is hereby autho-rised, during the minority of his said child, to sell and convey in fee simple, to such persons as he shall think proper, any lots lying within the aforesaid part of the said town of Northampton, or to be laid out in lands of which he is seised as aforesaid, adjoining the said town; provided, that there be .reserved a perpetual ground-rent of at least two dollars, issuing out of and charged on each lot, to be paid to the said William Tilghman for his life, with remainder in fee simple to the heirs of his said late wife.” Under this power, William Tilghman made sale, from time to time, of lots and lands coming within the description mentioned in the act, on which he respectively reserved ground-rents of two dollars per annum in the manner prescribed ; but also received in hand, or contracted to receive gross sums on many of the sales, in addition to the ground-rent stipulated to be paid. The exact amount of the whole money thus received was a matter disputed in this cause: the appellant alleging it to have been 7500 dollars, and claiming the same'with-interest; the appellees stating it at 5000 dollars or less.
The question is, how this money in the hands of William Tilgh-man at the time of his death, is to be considered, whether as personal or real estate. If the former, it passed to B. Chew, Jr., in right of his late wife, who died before her father, William Tilghman ; but, if it is real estate, then it is claimed by the heirs of Wm. Tilghman’s former wife, her daughter and grandchild having both, died before Wm. Tilghman, and his estate by the curtesy having prevented the claim of B. Chew, Jr., as tenant by the curtesy.
If sales by William Tilghman in the mode above-mentioned, were good, (and we must now take them to be so,) they could only be valid because they were made under the power conferred by the act of assembly. Without such an act, Wm. Tilghma.n could have conveyed no more than bis life-estate; and at his decease, as events [65]*65have transpired, the lots and lands would have descended to the heirs of Mrs. Tilghman. No private act of assembly could have been procured to authorise a tenant by the curtesy to sell lands, without investing the proceeds of the sales in the same manner as the title to the land was held; and that object the act in question attained, by directing that ground-rents should be reserved out of the lands when sold, and that those ground-rents should be payable to the tenant by the curtesy during his life, and after his decease, to the heirs of his deceased wife, — thus substituting a ground-rent issuing out of the land for the income or profits of the land. Thus far all is clear enough. But what is to be done with the surplus money, beyond the amount of the ground-rents ? As to this there is no legislation ; the act is- silent. It appears to me, that we have no other rule to go by than that by which all other conveyances are construed; and that such an act of assembly is to be construed like other conveyances, by the established principles of law and equity in relation to them; for a private act of assembly for such purpose is but a mode of assurance. Private acts of parliament, says Blackstone, are, especially of late years, become a very common mode of assurance. They are looked on rather as a private conveyance, than as the solemn act of the legislature. A general saving is constantly added, at the close of the bill, of the right and interest of all persons whatsoever, except those whose consent is given or purchased, and who are therein particularly' named, though it hath been holden, that even if such saving be omitted, the act shall bind none but the parties. 2 Bl. Com. 344, 345, 346.
Then the case is, that in a conveyance a power is given to sell real estate, and raise a sum of money by passing the fee, but the conveyance is silent as to the nature or disposition of a part of that money. Is that money personalty, or does it still partake of the nature of real estate 1 In the conversion of real estate into personalty by will, the rule is well settled, that if executors be empowered by will to sell real estate for cértain purposes, such for instance, for the payment of debts,- or raising portions; and the sale is made, but a surplus remains undisposed of; whether that is occasioned by the silence of the testator, or by lapse, or other cause of inefficiency in the will, the heir at law takes the residue as ’ he would have taken the real estate. Leigh & Dalz. on Conversion, 92, and cases. So here, if the act of assembly empowers the tenant for life to sell a fee simple, reserving a ground-rent-for part of the consideration and receiving a gross sum for the surplus; and from silence on the part .of the legislature who create the power, no disposition is made of such sum; it continues real estate under the same limitations and restrictions as it before possessed, until it is subsequently impressed with the character of personalty by the owner; and that owner must be either one holding the absolute title in fee, or all the persons holding the different estates composing-the fee. There is [66]*66nothing to show any act or intention in the owners to convert this into personalty; and indeed the daughter’s power to do so was liable to objection, she being a minor and afterwards a feme covert.
Mere possession of the fund in money by William Tilghman, as trustee for those entitled after his death, did not change its character; it was still real estate. If money which has been impressed with the character of realty, is in the hands of a trustee, not placed out by him, but remaining in covenant, the wife dying in the lifetime of the trustee, the heir takes it, and not the administrator of the wife. 1 P. Wms. 172.
This disposition of the fund seems to me in the present case reasonable and just, and such as the legislature, if its intention had been expressed in the case, would have enacted. For then the gross sum, which is part of the price of the land, goes exactly as the ground-rents go, which constitute the other part of the price ; that is, in lieu of the land and as a substitute for it. And if the power to stipulate for this gross sum exists, it is because it was more convenient to sell in that way than for a higher ground-rent. This is a circumstance which ought not to change the nature and character of the price, or make one portion of it real, and the other portion personal, — one to pass in one line of descent and the other in another and different line of descent.
We think the Orphans’ Court had jurisdiction over this fund, being the proceeds of sale of the real estate paid into Court, under the 19th section of the act of 24th February, 1834.
Decree accordingly.
The following decree was entered in this case:—
The decree of the Court below is confirmed so far as respects the claim of Benjamin Chew, Jr., to be a creditor of the said estate for the sum of $27,500, with interest, or any part thereof.
And also, so far as respects the claim of said Benjamin Chew, Jr. as to the sum of $7,500 or any part thereof, being the proceeds of certain real estate claimed as belonging to the daughter of William Tilghman, Esq., (subject to his curtesy,) sold by the said William Tilghman, Esq., during his lifetime.
The Court is of opinion, that the proceeds of said real estate so sold remained impressed with the character of real estate, and as such, passed on the decease of said William Tilghman, to the heirs at law of Margaret Elizabeth Tilghman, his late wife; and a claim on their behalf to said proceeds having been presented to this Court on this appeal, the record is hereby remitted to the said Orphans’ Court, that the same may be examined and settled according to law.