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THE

LAW MAGAZINE;

OR,

QUARTERLY REVIEW

OF

Jurisprudence.

ART. I.-CONVERSION BY DEED.

Griffiths v. Ricketts, 7 Ha. 299.

THE THE question in this case arose upon a deed, by which Edmund Griffiths conveyed all his real and personal property to trustees upon trust to sell with all convenient speed for the payment of his debts, and in case there should be any surplus of the sales-monies, upon trust to pay the same to the said Edmund Griffiths, his executors, administrators and assigns, to and for his and their own absolute use and benefit. The deed contained a covenant by Griffiths not to revoke the powers, nor to interfere in any way in the execution of them, and for further assurance. No sale took place during the life of Edmund Griffiths, but after his death the question arose between his real and personal representatives, whether this deed operated as a conversion; and the Vice-Chancellor (Wigram) decided that it did, and that the personal representatives were alone entitled, and that they took as trustees for the next of kin, and not for the heir.

"The question to be answered, it must always be remembered," said the Vice-Chancellor, " is not whether the surplus proceeds of the trust estates are real or personal estate, but to which of the testator's [he should have said grantor's] representatives those proceeds, whether real or personal estate, belong.

"If the question arose under the will of Edmund Griffiths," continued the Vice-Chancellor," and not under his deed, I should perhaps have had little difficulty in answering the question; I should follow my own decision in Fitch v. Weber, which was founded upon Robinson v. Taylor2 before Lord Thurlow. The will speaks from the death of the testator, and whatever is deemed real estate at his 1 6 Ha. 145. 2 2 B. C. C. 589.

VOL.XIV. NO. XXVII.

L

decease goes to his heir. A contemporaneous declaration that his real estate shall be turned into personalty may alter the character of the property which the heir-at-law takes; but unless it be given away from the heir, there is no reason why he should not take it, although the trusts of the will may compel him to take it as personal estate, and not as real estate.

"But a deed differs from a will in this material respect. A will speaks from the death,-the deed from delivery. If then the author of the deed impresses upon his real estate the character of personalty, that, as between his real and personal representatives, makes it personal and not real estate from the delivery of the deed, and consequently at the time of his death. The principle is the same in the case of a deed as in the case of a will; but the application is different, by reason that a deed converts the property during the lifetime of the author of the deed, whereas a will does not affect the conversion till the death of the testator; and there is no principle on which the court, as between the real and personal representatives of the deceased (between whom there is confessedly no equity), should not be governed by the simple effect of the deed in deciding to which of the two claimants the surplus belongs. 'There

is no weight,' says Sir William Grant, in the circumstance that the property is found in the shape of money or land, for the character is to be found in the deed,' not in the accidental status of the property.

"The question remains, however, as to the surplus property sold after the death of Edmund Griffiths, or not required to be sold to pay his debts. The answer to this must be found in the deed. I can understand the argument, which alters the nature of the property according as it is actually sold or not sold; but I cannot understand the reasoning, which in the case of a deed would give the surplus to a different person according only to the time when the trustees may happen to execute the trust for sale. In the absence of authority therefore I should conclude that the personal representative of Edmund Griffiths, and not his heir, is the party entitled to the surplus of the property comprised in the deed of 1810.

"With respect to authority, Biggs v. Andrews is a direct authority in point. It is true indeed that the language of the deed in that case does in a popular sense express more clearly than the language in the present case the intention that the surplus property should become personal estate; but the limitation of the surplus to Edmund Griffiths, his executors, administrators and assigns, expresses in technical language all that is expressed in popular language in Biggs v. Andrews; and I am not at liberty to suppose that Edmund Griffiths, using technical language, did not understand what it meant.

"I think therefore, both upon principle and authority, the personal representative of Edmund Griffiths, and not his heir-at-law, is the

Thornton v. Hawley, 10 Ves. 129.

2 5 Sim. 424.

party entitled to the surplus of the property comprised in the mortgage of 1810.

Many dicta may be found in apparent conflict with what I have decided; but the dicta will, I believe, be reconciled with the present decision, by adverting to this, that those dicta are applied to wills, and not to deeds, or to deeds in which there has been no disposition of the ultimate surplus, or none inconsistent with the rights of the heir."

We have given all the principal portions of this decision, because the principles laid down are of great importance and extensive practical application, and also because they appear to be opposed not merely to dicta, as the Vice-Chancellor states, but to at least one decided case (not however cited in argument), and to the opinion of more than one conveyancer and text-book writer of that class whose recorded opinions are little less weighty than judicial dicta.

To the distinction drawn by the Vice-Chancellor with regard to the operation of deeds and wills-the former from the date of delivery, the latter from the death of the testator-we do not feel that exception or addition can be made. And having regard to this difference as to the times of operation, and the consequences of it, we conceive that, as stated by the Vice-Chancellor, the principles which regulate the decision of the question "conversion or non-conversion" in wills are exactly applicable to deeds.

The question has arisen much more frequently upon wills. But probably the most numerous class of deeds which come within the decision in Griffiths v. Ricketts are mortgages with power of sale. The trusts of the sales-monies to arise upon an exercise of the power direct payment of the surplus to the mortgagor, his executors, administrators and assigns, almost as often as to the mortgagor, his heirs and assigns; and in such case, according to the principles laid down in Griffiths v. Ricketts, the next of kin or personal representatives would at the death of the mortgagor be entitled to the equity of redemption, and not the heir of the mortgagor-a conclusion, we will be bound to say, not in one case out of a hundred intended by the parties. A mortgagor may mean by such a clause that, in the event of a sale taking place after his decease intestate, as to this equity of redemption, his executor or administrator, not his heir-at-law (who might possibly be an infant, a feme covert or non compos), should be the hand to receive the surplus monies, and give discharges, but should hold them in trust for the heir, which opinion appears to us (since in the conflict of decision we may advance