cent., is to be allowed from the time of payment up to the time of this judgment. And the decree of the circuit court is to be reformed accordingly.

Decree reformed.

1818.

Craig

V.

Leslie.

(CHANCERY.)

CRAIG V. LESLIE et al.

R. C., a citizen of Virginia, being seized of real property in that state, made his will: "In the first place I give, devise, and bequeath unto J. L." and four others, "all my estate, real and personal, of which I may die seized and possessed in any part of America, in special trust, that the afore-mentioned persons, or such of them as may be living at my death, will sell my personal cstate to the highest bidder on two years credit, and my real estate on one, two and three years credit, provided satisfactory security be given by bond and deed of trust. In the second place, I give an bequeath to my brother T. C." an alien, "all the proceeds of my estate, real and personal, which I have heroin directed to be sold, to be remitted to him, accordingly as the payments are made, and I hereby declare the aforesaid J. L." and the four other persons, "to be my trustees and executors for the purposes afore-mentioned." Held, that the legacy given to T. C., in the will of R. C., was to be considered as a bequest of personal estate, which he was capable of taking for his own benefit, though an alien.

Equity considers land, dirccted in wills, or other instruments, to be sold and converted into money, as money; and money directed to be employed in the purchase of land, as land.

Where the whole beneficial interest in the land or money, thus directed to be employed, belongs to the person for whose use it is given court of equity will permit the cestui que trust to take the money.

1818.

Craig

or the land at his election, if he elect before the conversion is made.

But in case of the death of the cestui que trust, without having determined his election, the property will pass to his heirs or personal re presentatives, in the same manner as it would have done if the conversion had been made, and the trust executed in his life time.

The case of Roper v. Radcliff, 9 Mod. 167. exinined; distinguished from the present case; and, so far as it conflicts with it, overruled.

THIS was a case certified from the circuit court for the district of Virginia, in which the opinions of the judges of that court were opposed on the following question; viz. Whether the legacy given to Thomas Craig, an alien, in the will of Robert Craig, is to be considered as a devise, which he can take only for the benefit of the commonwealth, and cannot hold; or a bequest of a personal chattel, which he could take for his own benefit?

This question grows out of the will of Robert Craig, a citizen of Virginia, and arose in a suit brought on the equity side of the circuit court for the district of Virginia, by Thomas Craig, against the trustee named in the will of the said Robert Craig, to compel the said trustee to execute the trusts, by selling the trust fund, and paying over the proceeds of the same to the complainant.

The clause in the will of Robert Craig, upon which the question arises, is expressed in the following terms viz. "In the first place, I give, devise, and bequeath unto John L. lie," and four others, "all my estate, real and personal, of which I may die seized or possessed, in any part of America, in special trust, that the afore-mentioned persons, or such of them as may be

Craig.

V.

Leslie.

living at my death, will sell my personal estate to the 1818 highest bidder, on two years credit, and my real estate on one, two, and three years credit, provided satisfactery security be given, by bond and deed of trust. In the second place, I give and bequeath to my brother, Thomas Craig, of Beith parish, Ayrshire, Scotland, all the proceeds of my estate, both real and personal, which I have herein directed to be sold, to be remitted unto him accordingly as the payments are made, and I hereby declare the aforesaid John Leslie," and the four other persons, "to be my trustees and executors for the purposes afore-mentioned."

The attorney general of Virginia, on behalf of that state, filed a cross bill against the plaintiff in the ori ginal suit, and the trustee, the prayer of which is to compel the trustee to sell the trust estate, so far as it consists of real estate, and to appropriate the proceeds to the use of the said commonwealth by paying the same into its public treasury.

The will of Robert Craig was proved in June, 1811, and the present suit was instituted some time in the year 1815.

Mr. Nicholas, (attorney general of Virginia,) argued, that most, if not all nations, have imposed some restrictions upon the capacity of aliens, to hold property within the territory of the nation. The law of England and the law of Virginia being the same in this respect, there is no want of reciprocity, and there. is a peculiar fitness in extending the same rule to British subjects in this country, as is imposed on Ameri

Feb. 20th.

1818.

Craig

V.

Leslie.

1

can citizens in England. By the law of England
an alien cannot take a freehold by inheritance; he
may take by purchase, but cannot hold it escheats
to the crown upon an inquest of office. Nor is this
incapacity confined to a freehold interest: it extends
to leaseholds, and any the smallest interest in lands."
The severity of this rule has been relaxed only for
the benefit of commerce, and that very partially.
An alien merchant may take a lease for years of
a house for habitation, but not of lands, &c. And to
other alien can even take a lease of a house for habi-
tation.b The rule may be considered as illiberal, and
inconsistent with the enlightened spirit of the age;
but its wisdom may be vindicated on many grounds;
and it can only be dispensed with by the legislative
will, or by compact with foreign nations. As Lord
Mansfield said of the laws against the Papists, "whe-
ther the policy be sound or not, so long as they
continue in force they must be executed by courts of
justice according to their true intent and meaning.
The legislature only can vary or alter the law." The
property in question consisted of real estate, which
remained in specie, at the time of the devisor's death.
The devise of a trust in lands cannot operate for the
benefit of an alien. No equitable fiction can change
the specific quality of the property. It is the settled
doctrine of the common law, that an alien cestui que

a Co, Lit. 2. b llargrave's notes. Calvin's case, Co. Rep. part 7. 18. b.

VOL

trust can only take for the king's use."
All the rea-
sons of policy which incapacitate him from holding
a legal estate in lands, equally apply to disable him
from holding an equitable estate in the same species
of property; it is the usufruct, of which the law aims
to deprive him. Trust estates are governed by pre-
cisely the same rules as legal estates. "The forum
where it is adjudged," says Lord Mansfield, speak-
ing in a court of equity, "is the only difference
between trusts and legal estates. Trusts here are
considere, as between the cestui que trust, and
trustee, (and all claiming by, through or under
them or in consequence of their estates,) as the
ownership and as legal estates, except when it can
be pleaded in bar of this right of jurisdiction. What-
ever would be the rule of law if it was a legal estate,
is applied in equity to a frust estate." Again; speak-
ing of the case of Banks v. Sutton, he says, "So that
I take it by the great authority of this determination
on clear law an: reason, cestui que trust is actually
and absolutely seized of the freehold in considera-
tion of this court; and that, therefore, the legal con-
sequence of an actual seizure of the freehold, shall
in this court follow for the benefit of one in the

a The King v. Holland, Styles, 20. Aleyn, 14. Rolle's Abr. 154. 534. The Attorney General v. Sir George Sands, 139, 131. 3 Ch. Rep. 33. Hobart, 214. 1 Mod. 17. Hardres, Gilbert on Uscs and Trusts, 243. 1

495.

Cro. Jac. 512,

Com. Dig. 300. 1 Bac. Abr. let. C. til. Alien, 132. Harrison's case, Mr. Jefferson's correspondence with Mr. Ham mond, State Papers, Waite's ed. vol. 1. p. 374.

♪ Burgess v. Wheate, 1 W. Bl. 160.