Sparhawk v. Allen

25 N.H. 261

• Court: Superior Court of New Hampshire
• Decided: December 15, 1852
• Status: Published

Opinion

Gilchrist, C. J.

The defendant’s exception to the master’s report is ■ founded on this position, that the rents and profits of the real estate, received by the executor, must be considered as personal property, and as constituting a part-of the legacy given to Mrs. Sparhawk by the will. It is the duty of the executor, in this case, to receive the rents of the land and account for them, to be distributed according to law. Revised Statutes, chap. 159, § 10. There are numerous cases where, for the purpose of carrying out the intentions of the testator, land is considered as money, and money, on the other hand, is regarded as land. But the equitable doctrine of constructive conversion is not applicable here. It has long been established 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. Fletcher v. Ashburner, 1 Brown C. C. 499; Wheldale v. Partridge, 5 Ves. 396. It follows, therefore, that every person claiming property under an instrument directing its conversion, must take it in the character which that instrument has impressed upon it; and its subsequent devolution and disposition will be governed by the rules applicable to that species of property. Thus money, directed to be laid out in land, is subject to tenancy by the courtesy. Sweetapple v. Bindon, 2 Vern. 536; and passes under a devise of lands, tenements and hereditaments. Rashley v. Masters, 1 Ves. 201. So where lands were devised to be sold, and the produce paid to A, it was held that the property was, at his death, subject to the legacy duty as personal estate, though not actually converted. The whole doctrine of equitable conversion depends upon the well established and familiar principle, that a court of equity looks Upon that as done which the parties to an agreement or marriage settlement have contracted to do, or which the testator, by his will, has directed to be done, so far as the contract of the parties or the will could have been carried into eifect without violating any equitable principle or rule of law. Lorillard v. Coster, 5 Paige 173-218. Now it does not appear from the will in this case that the testator had any intention of turning his real estate into money. If the rents of the land can be regarded as personal property, it must be because that character is given them in some other way than by the will. The personal estate was sufficient to pay the debts. The law requires that that fund should first be exhausted, and then the real estate may be applied for that purpose. If the land is to be turned into money, and then become the property of the widow, or if she is entitled to the rents of the real estate, she will receive a larger sum than the testator contemplated, or than the will would have given her at the time of his decease.

It is not at all necessary that the rents of the land should be regarded as personal property. It was for no such purpose as that, that the law authorized the administrator to receive the rents of the real estate. The object of this provision was, that the administrator might be enabled to do his duty effectually, and for the interest of the parties. The immediate effect of the defendant’s position in this case is, that it is for his interest to keep the estate unsettled, and receive the rents and profits for as long a period as possible; for if his reasoning be correct, one half of the rents belongs to him by his conveyance from Mrs. Sparhawk. The proper mode of accounting for the rents and profits is, that the real estate should bear its own burdens, and that the charges and expenses of carrying it on should be deducted from the rents.

Exceptions overruled.