
    [Philadelphia,
    February 6, 1836.]
    BURR against SIM and Others.
    IN ERROR.
    1. A testator directed his executors to sell all his real estate, goods and chattels, and to pay the proceeds, together with all the moneys coming to their hands after the payment of his just debts, funeral expenses and legacies, to two persons whom he appointed guardians for his son, and whom he directed to invest the money and to apply the interest thereof to the maintenance and education of his son during his minority, and to pay the principal to him on his arriving at the age of twenty-one years. But in case he should die before his arrival at'that age, he gave the same to the children of a brother and sister in Scotland : in the same clause with the directions to the executors to sell, he declared his will to be that his houses should be rented out “ until the same shall be sold as aforesaid.” The houses were not in fact sold. The son of the testator arrived at the age of twenty-one, and died about a year thereafter, having made a will in which he devised one of the houses to A., “ her heirs and assigns,” and the other to B. without words of inheritance: Held,' 1. That the real estate of the testator was in equity converted into personal, by the directions of his will, and continued so during the minority of the son: 2. That the son was to be considered as having elected to take the houses as real estate, and that B. took only a life estate in the house devised to him. 3. That the election to take as real estate operated as a new acquisition, and not to cast the descent upon him as from the part of his father, and consequently, that the reversion in fee of the house devised' to B. vested in the heirs ex parte materna as well as those ex parte paterna.
    
    2. A testator began his will thus, “ I, A. C. C. feel myself in declining state of body, and knowing the certainty of death, and not knowing the time thereof:” after certain bequests he gave to A. “ or to her heirs or assigns one three story brick house in Arch street, No. 63. Further I wish to give to W. C. one other three story house in Arch street, No. 65;” the will concluding thus, and not being signed by the testator : Held, that C. took only a life estate in the house devised to him.
    This was a writ of error to the District Court for the City and County of Philadelphia, to remove the record of an action of ejectment brought by George Sim, Margaret Sim, Jean Anderson, and Peter Nicholson, against Postrema Burr, to recover possession of a house and lot of ground situate on the north side of Mulberry (or Arch) street, between Second and Third streets, in the City of Philadelphia. ¡
    The plaintiffs below claimed as heirs of a certain Archibald Cummings Craig, who died seized or possessed of the premises, on the 5th of September 1797, and whose title to the same arose as follows:
    George Craig the father of the said Archibald Cummings Craig, died seized of the premises, with other real estate situate in the City of Philadelphia and elsewhere; having made his last will and testament dated the 17th day of June, 1782; in which, after directing the payment of all his just debts and funeral expenses by his executors, and after giving his wife a. legacy of £250, he made the following provision:
    “ Item. My will is, and I do hereby authorize impower and direct my executors hereafter named, and the survivor of them to grant, bargain, and sell, either at public or private sale, and at such time or times as they or the survivor of them shall think most convenient and proper, all those my two messuages or tenements, and lots of ground situate in the City of Philadelphia, and my house and lot in the borough of Lancaster, and to make, seal, execute, and deliver a deed or deeds, valid in the law, for the same, to the purchaser ,or purchasers thereof, his, her, or their heirs and assigns forever; and my will further is, that my said executors or the survivor of them, do sell either at public or private sale, as may be thought most proper, all the rest and remainder of my goods and chattels; and the moneys arising by the sale of my said real and personal estate, together with.all other moneys coming to their hands, after the payment of my just debts, funeral expenses, the legacies herein bequeathed, with the incidental expenses and a full compensation for their care and trouble, my will is, and I do hereby order and direct my said executors to pay into the hands of my friends William Craig and William Wells of the City of Philadelphia, or the survivor of them, to be applied and disposed of as hereinafter mentioned, whose receipt to my said executors, shall sufficiently requit, release and discharge them; and my will is, that.my houses be rented out until the same shall be so sold as aforesaid.
    “Item. Ido hereby nominate,1 constitute, and appoint my said friends, William Craig and William Wells, to be guardians over the person and estate of my son Archibald Cummings Craig, during his minority, and I do hereby authorize, impower, and direct the said William Craig and William Wells, and the survivor of them, to put and place out the money, so to be paid to them by my executors, at interest, on security, as they or the survivor shall deem good, from time to time, but at the sole risk of my said son, and shall apply the interest thereof, to and for the maintenance, education and clothing of my said son during his minority; and upon his my said son’s arrival to twenty-one years of age, to pay over all the moneys in their hands, after deducting all necessary expenses and a full compensation for their care and trouble, unto my said son, to whom I give and bequeath the same when he arrives at the age of twenty-one years, under the restrictions hereafter mentioned. But in case my said son shall die before his arrival to that age, without leaving lawful issue, then I give and bequeath the same to the children of my brother, Archibald Craig, and of my sister, Jane Sim, deceased, of that part of Great Britain called Scotland, to be equally divided between them part and share alike.”
    He then directed the emancipation of certain negro slaves, and proceeded as follows:
    “ Whereas I have some moneys in the stocks or funds in England under the care and management of Messrs. Mildred and Roberts, merchants in London, which yield an annual interest, now my will and mind is, that there be paid out of the interest thereof to the children of my sister, Jane Sim, deceased, the sum of thirty pounds apiece, the first payment thereof is to be made within four years after my decease, to the youngest of the said children, and the next payment to the next younger child, a twelfthmonth after, and,in the same manner annually till they shall each of them have been paid thirty pounds, and the remainder of the said money I give and bequeath to my said son, Archibald Cummings Craig, if he shall live to attain the age of twenty-one years, but if he dies before that time, without leaving lawful issue, then I give fifty pounds thereof to and for the use of Bedman’s house in the borough of Elgin, in the shire of Murray, in Scotland, to be paid to the overseers or managers of the said house; and other fifty pounds thereof I give to and for the use of the poor of the Episcopal Meeting in the said borough of Elgin, to be paid to the corporation of the said borough, and by the said corporation placed out at interest, which interest is to be paid-yearly to the said poor on Christmas day forever, and the remainder of said moneys I give and bequeath unto the children of my said brother and sister, equally to be divided between them.
    “ Item. My will and mind is, and I do order the guardians aforesaid, to take my said son under their care and management and send him when he is twelve years old to be educated at Old Aberdeen in Scotland; but if his mother refuses to deliver him up to the said guardians, or he himself refuses to go under their care and management, then and in either case, my will is, and I hereby declare that he my said son shall be entitled to and receive no more than only one half part of what I have hereinbefore intended to give him, and the other half part thereof I give and bequeath to the children of my brother and sister aforesaid, equally to be divided between them.
    “ Lastly, I nominate, constitute and appoint my friends Henry Hall Graham of the borough of Chester, and Richard Riley of the town of Chichester, sole executors of this my last will and testament, hereby revoking all former wills by me made, and declaring this and no other to be my last will and testament.”
    The executors of George Craig never actually sold the premises in question, and were both dead at the commencement of this ejectment. Archibald Cummings Craig, the son of the testator was sent when he was twelve years old to Aberdeen, in Scotland, where he received his education; and thence returned to Pennsylvania. He arrived at the age of 21 years some time in the year 1796. On the 5th of September, 1797, being absent from home and in the state of New Jersey, he made a will in the following words:
    “ In the name of God, amen. I Archd. Cumiss Craig feel myself in a a declinening state of body, and knowing the certainty of death, and not knowing the time thereof . the funds in Eng.
    “ My funds I have in the Bank of England I wold wish to devise unto John Creigh son of Archb. Cregg of Eegin County of Murough in the kingdom of Scotland, and unto Mr. Anderson, son in law unto the aford. Archibald Craig an inhabitant of Scotland, to be equal dd. between the of sd. Jo. Creg. and sd. Mr. Anderson.
    “ Likewise I wold give onto my loving frnd Joseph Louriat of the city of Philadelphia six hundred dollars.
    “ Further I wish to give unto Mesrgs. Martha Ross wife of Capt. David Ross of the citty of Philidelphia, or to her heirs or asigns, one three story brick house in Arch street, No. 63.
    “ Further I wish to give unto Doct. William Curry of the citty of Philada., one other 3 story house in Arch stt, No. 65.”
    The three story house in Arch street, last mentioned, was the property in dispute in this ejectment. The probate was as follows:
    “ Henry Disborough of Somerset county, and state of New'-Jersey, being duly sworn on the Holy Evangelists of Almighty God, did depose and say, that Archibald C. Craig of Philadelphia, died at this deponent’s house in sd. county of Somerset on the fifth of this instant. That on the day of his death the within writing was wrote part by the deceased and part by this deponent at the request of the deceased, and that the bequests therein set down and wrote by this deponent, were made in the hearing of the said deceased and acknowledged by the deceased to be wrote agreeably to his wishes, and that at the time the bequests were read to the said Archibald C. Craig, he the sd. Craig was of sound and disposing mind and memory as far as this deponent knows, and as he verily believes. This deponent further says that he asked the deceased as to further disposition of his estate, to which he replied, that as to the bequests already set down he had made up his mind upon them for some time past, but as to further bequests he had not fully made up his mind upon them, and must take some time to think upon the subject; upon which this deponent left the room for some time, and upon his return found the deceased, as he thought, incapable of proceeding any further on the business.
    Henry Disbrow.
    Sworn at Bedminster in Somerset county, the 13th day of September, a. d. 1797, before me, John Mehelm,
    
    Surrogate of sd. county.
    “ Henry Disborough junior, being duly sworn on the Holy Evan-' gelists of Almighty God did depose and say, that he was present in the room, where Archibald C. Craig deed., lay sick on the fifth instant; and heard Henry Disborough senr. read the bequests in the within writing, to the deceased, and heard the said deceased say that they were wrote agreeably to his wishes and will, and at that time the sd. deceased was of sound and disposing mind and memory as far as this deponent knowrs, and as he verily believes.
    Henry Disborotjgh, Jr. .
    Sworn at Bedminster, in Somerset county, the 13th day of September, a. d. 1797, before me,
    
      John Mehelm,
    
    Surrogate.”
    Archibald Cummings Craig, died unmarried and without issue. On the part of his father, George Craig, his next of kin were four first cousins, the issue of a paternal uncle and aunt. These, or the issue of such as were since deceased, were the plaintiffs in this ejectment. On the part of his mother he left two first cousins, viz. 1st, John Ewer Sword; 2d, Ann Sword married to Dr. Nathan Dorsey, and the issue of another first cousin, viz. James W. Sproat. John Ewer Sword, and Ann Dorsey died before the commencement of this suit.
    Dr. Wm. Currie, the devisee named in the will of Archibald Cummings Craig, died in thd year 1828, intestate, leaving two children, viz. 1st, Isabella, who married J. G. Williams. 2d, William Currie, who conveyed all his interest in the premises to the said J. G. Williams. The defendant, Postrema Burr, came into possession during the lifetime of Dr. Currie, as his tenant. The said J. G. Williams was admitted by the Court to defend as landlord of the defendant.
    The foregoing circumstances having been proved on the trial, the counsel for the defendants requested the Court to charge the jury,
    1. That by the will of Archibald C. Craig, Dr. Wm. Currie took a fee simple in the house and lot devised to him.
    2. That by the will of George Craig, the real estate devised to his executors to be sold, became converted into personal estate, and as such, vested in Archibald C. Craig, and was transmissible as such.
    3. That by the will of Archibald C. Craig, the property in dispute passed as personal property to Dr. William Currie, and therefore that he took an absolute interest in it.
    '4. That if at the death of Archibald Craig, the property in dispute is to be considered as real estate, yet it is to be regarded as a new acquisition by him, and not as having descended to him, or having been devised to him as real estate by his father, and therefore under the act of 1794, passed to his heirs on the part of his mother, as well as to the heirs on the part of his father, if Dr. Currie took only a life estate.
    The Judge, however, delivered his opinion to the jury,
    1. That Dr. William Currie took only a life estate in the premises under the will of Archibald C. Craig, and not a fee simple.
    
      2. That the real estate directed by the will of George Craig to be sold by his executors, was not converted into personal estate, nor as such did it vest in Archibald C. Craig, nor did the property in dispute pass by the will of Archibald C. Craig to Doctor William Currie as personal property, nor did the said Dr. Currie take an absolute interest in it as such.
    3. That the premises in dispute came to Archibald C. Craig by descent from his father, George Craig; and upon the death of the said Archibald, descended, subject to the life estate of Dr. Currie, to his next of kin on the part of his father.
    4. That no interest in these premises ever vested in the next of kin of the said Archibald, on the part of his mother.
    5. That the plaintiffs in this suit are entitled to, and must recover the whole of the house and lot in Arch street.
    Whereupon the defendants took a writ of error; and on the return of the record assigned the following errors, viz:
    “ 1. That the Court erred in charging the jury, * that Dr. William Currie took only a life estate in the premises under the will of Archibald C. Craig, and- not a fee simple.’
    2. That the Court erred in charging the jury, ‘ that the real estate directed by the will of George Craig to be sold by his executors, was not converted into personal estate, nor as such did it vest in Archibald C. Craig, nor did the property in dispute pass by the will of Archibald C. Craig to Dr. William Currie as personal property, nor did the said Dr. Currie take an absolute interest in it as such/
    3. That the Court erred in charging the jury, 4 that the premises in dispute came to Archibald C. Craig by descent from his father George Craig, and upon the death of the said Archibald, descended, subject to the life estate of Dr. Currie, to his next of kin on the part of his father/
    4. That the Court erred in charging the jury, ' that no interest in these premises ever vested in the next of kin of the said Archibald, on the part of his mother/
    5. That the Court erred, in charging the jury, ‘ that the plaintiffs in this suit are entitled to, and must recover the whole of the house and lot in Arch street/ ”
    Mr. Wharton, for the heirs of Dr. Currie, argued—
    1. That Dr. Currie took a fee in the premises. This is the case of a will imperfectly expressed, though sufficient appears to manifest the intent of the testator. The preamble is. incomplete; so is evidently the last sentence. That the Courts have power to supply words to complete the sense of the testator, is proved by many cases, most of which are cited in the notes to Mr. Jarman’s edition of Powell 
      
      on Devises, p. 374. Tills is a fair case for the exercise of this power, by completing the preamble as the testator probably intended, with words of general disposition, which have been held to enlarge an estate into a fee, which otherwise would have been only an estate for life. French v. M‘llhenny, (2 Binn. 13.) Lambert’s Lessee v. Paine, (3 Crunch, 96.) Powell, 370, &c. In the recent case of JVeide v. JVeide, (4 Ramie, 75,) the testator devised to his son J. N., his “ late purchase from E. C., as also four acres of Woodland, being in a corner,” &c. The word also was held by the Court to connect the “ late purchase,” with the 4 acres of woodland, so as to give a fee in the latter. Here the word further may be allowed the same effect.
    2. By the will of George Craig, the premises were directed to be sold, and were in equity considered to be actually converted into personal property; as such, they vested in A. C. Craig, and passed by his will as personal property to Dr. Currie, who, consequently, took an absolute interest in them; words of perpetuity not being necessary in gifts of personalty. The rule of equity on this subject is clearly established (Leigh SpDalzell on Conversion, p. 48, &c.) and has been recognized in this country. Craig v. Leslie, (3 Wheaton, 563.) Allison v. Wilson, (13 Serg. dp R. 330.) Morrow v. Brenizer, (2 Ramie, 185.) Taking it then as clear, that the positive directions of this will effected a conversion, it is necessary for the other side to show affirmatively, that there has been a re-conversion. The onus lies on then. Head v. JVewdigate, (2 Mer. 531.) The re-conversion could not have taken place during the minority of A. C. Craig, since as an infant, he had not the power. Earlom v. Saunders, (Amb. 241.) Van v. Barnett, (19 Ves. 109.) Nor had his guardians. Rook v. Worth. (1 Ves. Sen. 460.) Leigh Sp Dalzell, 149. Did he elect after he came of age ? He was 9 years old at the death of his father, and came of age about one year before his own death. Actual possession of the premises, as real estate, was not proved; if it had been proved, it would not have been sufficient, considering the short time he lived after 21. Davers v. Folkes, (1 Eq. Cas. Abr. 396.) In Kirkman v. Mills, (13 Ves. 338,) the Master of the Rolls was of opinion, that the occupation of land for two years, was too short to presume an election. In Ashby v. Palmer, (1 Mer. 296,) the property continued converted in law, though it was not so in fact, for 43 years. In Morrow v. Brenizer, C. J. Gibson, intimates that a reconveyance is necessary. The will of A. C. Craig, which will be relied upon on the other side, is by no means conclusive. It was made under circumstances which seem to exclude the idea of an intention to reconvert; and the description of the property, as “ a house,” &c. was unavoidable, whatever were his intentions; as it had pot been converted in fact. If he had held it on a lease forlOOO years it would still have been personal estate, although in his will he should have spoken of it as real.
    
      Mr. J. M. Read for the heirs ex parte materna,
    
    contended that A. C. Craig, elected to take the premises as real estate, on arriving at full age, and, as such, that they were to be considered a new acquisition, which, by the laws of Pennsylvania, went, upon his death, to his next of kin generally. The 12th section of the Act of 1794, regulates the course of descent in a case like the present. In Bevan v. Taylor, (7 Serg. 4* R• 403,) Judge Duncan who delivered the opinion of the Court, lays it down, that in case of an acquisition not coming on the part of the father or mother, the estate goes to all the next of kin. It is settled, that in all omitted cases, the heir at common law takes. Cresoe v. Laidley, (2 Binn. 285.) The estate must have come as real estate from the father. Now, the will of George Craig directs the sale of the property at all events; and this is the case of a conversion out and out. Jeremy on Equity, 530; 1 Merivale, 296, Craig v. Leslie. Cruise v. Barley, (3 Peere Wms. 22.) Duroure v. Motteux, (1 Ves. Sen. 320.) Mallabar v. Mallabar, (Cas. Temp. Talbot, 79.) Yates v. Complon, (2 Peere Wms. 308.) Doughty v. Bull, (2 P. Wms. 320.) In Allison v. Wilson, (13 Serg. 4* R- 330,) it was held that a judgment did not bind the interest of an heir under circumstances like the present. The same doctrine was maintained in Morrow v. Brenizer, (2 Rawle, 189;) and C. J. Gibson there intimates a strong opinion that the déscent was broken. In a still later case, the same view is taken. Hartman’s Estate, (4 Rawle, 39.) In Simpson v. Hall, (4 Serg. Sp R. 337,) the father had made a settlement on land; and the money paid for patenting was derived from his estate, yet it was held to be a new acquisition. That this was not a mere naked power is evident. There was an express direction, followed by a trust. Franklin v. Osgood, (2 Johns. Ch. Rep. 20; 14 Johns. Rep. 527.) 7 Brown P. C. 559; Sugden on Powers, 393. It is settled by the authorities, that no election could have been made by or for A. C. Craig, until he arrived at full age? that it then came to him as personal property, and it seems to follow that his election to take it as real estate was in the nature of a purchase.
    Mr. Scott and Mr. Bradford for the heirs ex parte paterna.
    
    1. Dr. Currie took only a life estate. This will contains none of the expressions which have been relied upon in other cases, to give the fee. The use of the word heirs in the fourth clause, shows that the testator knew what was necessary for the purpose. The word further means no more than item. Ferres v. Smith, (17 Johns. Rep. 221.) Mudge v. Blight, (Cowper, 352.) Buzby v. Buzby, (1 Dali. 226.) Clayton v. Clayton, (3 Binn. 476.) Steele v. Thompson, (14 Serg. 4- R. 85.) Evans v. Knorr, (4 Rawle, 66.)
    
      2. The doctrine of conversion is a creature of equity. It was introduced to prevent injustice and to carry out the designs of testators; and where a contrary result would be produced, the law which considers land as land, will be left to itself. There is no case in which this doctrine has been interposed, except to sustain a plain general intent. Now the will of George Craig shows an evident desire to favour his Scottish relations. The object of the sale was to enable them to take as legatees; since, as aliens, they could not take real estate. This Court is now asked to set up a fiction, for the purpose of letting in persons who were strangers in blood to the testator. Now it is settled that where the object of the sale fails, equity will not compel the execution of the power. Leigh v. Dalzell, 117, 119, and the cases cited. Hewett v. Wright, (1 Bro. C. C. 86.) Smith’s Lessee v. Folwell, (1 Binn. 558.) Jackson v. Jansen, (6 Johns. Rep. 73.) Clark v. Campbell, (2 Rawle, 215,) 1 Bro. C. C. 226. This was a mere naked power, created too before the passage of the act of 1792. The fee descended to the heir at law, subject to the power. In Allison v. Wilson, the will was made after the act of 1792. So in Morrow v. Brenizer. There is nothing devised to the ■executors by this will. The distinction between a devise of the estate to the executors, and a devise of an authority to sell, is still maintained notwithstanding some efforts to impugn it. Co. Litt. 113, (a); Sugden on Powers, 106, 459, &c. 1 Vernon, 204. Lancaster v. Thornton, (2 Burr. 1027.) Roper v. Radclijf, (9 Mod. 167.) Plunkett v. Penson, (2 Atkyns, 291.) 3d East, 558; 1 Caines, 16. Mr. Sugden lays it down expressly, that “where a power is given by a will to trustees to sell an estate and apply the money upon trusts, the power is in the nature of a trust. The legal estate, until the execution of the power descends to the heir at law.” [Rogers, J. There is a direction in this will that the houses shall be rented until a sale is made; does this not, coupled with the direction to sell, seem to give the estate to the executors ?] In Carpenter v- Collins, ( Yelverton, 73,) the executors were directed to rent the real estate, áre. yet the real estate was held to be in the heir. Then, if the executors had only a power, and there was no devise of the land to any one, the heir was certainly in by descent. Co. Litt. § 169. Hunt v. Rousmaniere, (8 Wheaton, 174.) Crabtree v. Bramble, (3 Atkyns, 675.) Fonblanque, (by Lausatt,) 320, note v. Worthington on Wills, 115. The case of Hartman’s Estate, (4 Rawle, 39,) cited on the other side, confirms the position, since the share of the sonj who purchased at the executor’s sale was held to come to him directly •under the will.
    Mr. Wharton, In reply,—
    1. All the cases cited to show that the devise to Dr. Currie was of a life estate only, are cases of complete wills, where the testator had expressed all he meant to say. As to intention, the testator in this case had provided for his Scottish relations, and probably meant to g,iv.e the same estate in the house No.. 65, as he had given in No. 63. The cases cited by Judge Kennedy in 4 Rawle, 70, come very near this.
    2. The will of George Craig does not mention the object of the sale of his real estate. The directions'"are general and positive; and he seems to take it for granted that the sale would be made. If his object had been merely to prevent an escheat, he would have directed a sale in the event of the death of his son under age; not in every event as he has done. The cases relative to the failure of an object of sale are therefore not applicable. They are all cases of a power of sale for a particular object — as the payment of debts; and the Courts have said, that if the object fails, the heir shall be considered as in from the beginning, because he is entitled to every interest not disposed of. Here, however, all the interest in the land is disposed of, from him. There can be no resulting trust for him, when the whole beneficial interest is given to him in the shape of personal estate. Then it is impossible to consider this a mere naked power, consistently with the current of authorities. Zebach v. Smith, (3 Binn. 72.) Lloyd v. Taylor, (lYeates, 422.) Toller on Executors, 412, 413. The direction that the houses shall be rented, is sufficient to distinguish this case from those which have been cited on the other side. In Carpenter v. Collins, (Yelverton, 73,) there was no direction or authority to sell; and the Court seems to have been divided on the question whether the executors took the legal estate. In Lancaster v. Thornton, Roper v. Radcliff, and other cases, there was a mere authority to sell, without any intermediate control over the estate. Roper v. Radcliff is besides entitled to little respect from the peculiar circumstances under which it was decided; and it never has had much weight. 3 Wheaton, 590. The passage cited from Sugden, 393, is to be taken with reference to the mere naked power of which he had been treating; as appears clearly from the cases cited by him.
   The opinion of the Court was delivered by

Rogers, J.,

who after stating the facts and the principal clauses in the wills of George Craig and Archibald Cummings Craig, proceeded thus—

It is contended, 1st, that by the will of. George Craig, the house and lot devised to Doctor Currie, which is the subject of the ejectment, was converted into personal property.

2. That whether personal or real, Doctor Currie took an absolute interest in the estate.

3. That if the real estate was, by the will of George Craig, converted into personalty, yet, Archibald Cummings Craig elected to take it as real estate after he attained full age: that as such, it was a new acquisition in his hands, and descended to the heirs, ex parte paterna as well as materna.

Under the three questions as above stated, it is believed, that all the points which have been so ably and elaborately discussed at the bar, may be considered.

There are certain principles which enter into the solution of the first proposition, that do not, at this day, admit of dispute. Thus equity considers lands directed 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. The doctrine of conversion, as it is called, is founded on the equity maxim, that what is properly and sufficiently directed to be done, is in equity, considered as done. By virtue of it, one may impress upon his money the character of land, and upon his land, that of money, in so effectual a manner, that the property will thereafter, in a Court of Chancery, be treated as of the description into which it is directed to be changed. The question of conversion is determined according to the intention of the testator, which if it be not expressly mentioned, must of course be derived from the general effect of the will.

The general intention of George Craig to convert his real estate into money is, we think, very plain. If we are at liberty to speculate as to the reasons which governed him in the disposition of his property, it would seem to have arisen from an impression that money would be better for his son than land, an impression probably derived from the difficulty and losses he had experienced in the management of his real estate. The testator has blended his real and personal property into one common fund, and has throughout spoken of it and treated it as money, and as such, has directed it, in express terms, to be paid over to his son, when he arrived at the age of twenty-one years.

It is said, that if the purposes of the will be specific, as to pay the testator’s debts, legacies, or other charges, the property beyond what is sufficient to satisfy the same, will be held to remain in its original estate; and if they should wholly or partially fail, the property will be regarded, as if no conversion or only a partial conversion thereof had been made. The heir-at-law has a resulting trust in such land, so far as it is of value, after the debts and legacies are paid; and he may come into a Court of Equity,' and restrain the trustee from selling more than is necessary to pay the debts and legacies; or he may offer to pay them himself, and pray to have a conveyance of the part of the land not sold in the first case, and the whole in the latter, which property will, in either case, be land and not money. This is undoubtedly true, but the counsel have failed in pointing out such specific purposes in the will. The payment of debts and legacies was not the moving cause, for they might have been paid out of the personal estate, which is the primary fund for that purpose; nor is there any grounds to believe, that the object he designed to effect, was to devise a mode of providing for his alien relatives, who resided in Scotland, as this might have been ’done equally well in other ways. But, even if these were some of the reasons which influenced him, there is no ground for supposing, that they were the only, or the principal ones. By the will he gives his property to his son, when he attains the age of twenty-one years, and directs the money arising from the sale of the real estate, as well as the personal, to be paid over to the guardians for his benefit during his minority, and the money, when he attains age, to be paid to himself by his guardians. Even, in the case of resulting trusts for the benefit of the heir-at-law, it is settled, that if the intent of the testator appears to have been to stamp upon the proceeds of the land directed to be sold, the quality of personalty, not only to sub-serve the particular purposes of the will, but to all intents, the claim of the heir-at-law to a resulting trust is defeated and the estate is to be considered to be personal. Craig v. Leslie, (3 Wheat. 583.) Yates v. Compton, (2 P. Wills. 308).

This case comes within another principle. Where the property devised is real, and directed to be divided for the general purposes of the will, as for instance, to form with the personalty a common fund, for all the purposes of the will, although it should happen, that some of them fail, it will be considered an absolute conversion. The new character is definitively and imperatively fixed upon the property, or in more technical words, it is said to be converted out and out.

But, whether the property be personal or real, it is said Doctor Currie took the whole interest. It this be true, it defeats the plaintiff’s title. The observations which have been already made, might seem to dispense with any opinion on the construction of the will, on the supposition, that the house and lot was real property, but,. although this may be so, yet on that point we think it right to express an opinion. This point arises on the clause of the will of Archibald Cummings Craig:

“ Further, I wish to give unto Doctor Wilm. Curry, of the Citty of Philada. one other three story house in Arch-Stt., No 65.”

It is contended that there are no words of limitation in this clause, which will carry a fee; still it is said, that such intention may be collected from the whole will.

In aid of this part of the case the counsel wish the Court to supply certain words in the introductory part of the will, and in the devising clause. Words may be transposed, supplied, and changed in accordance with the context. But this cannot be done on conjecture; there must be something in the will, from which there may be a reasonable implication, that by the construction you carry into effect the testator’s intent. (Pow. D. 371, in note.) We are requested to supply the words declarative of intention to dispose of all his estate. B.ut, even if we felt ourselves at liberty to do so, I do not see how this would help their case; for although the introduction of a will declaring that a man means to make a disposition of all his worldly estate or worldly goods, is a strong circumstance connected with other words, to explain the testator’s intention of enlarging a particular estate, or of passing a fee, when he has used no words of limitation, it will not do alone. Ferris and Wife v. Smith & al. (17 Johns. Rep. 221.) Loveacres v. Blight, (Cowp. 356.)

We are desired however to add words of limitation to the devising clause, but for this we perceive no warrant in the will. It is impossible for us to tell, if he had carried out his intention further, what disposition he would have made of the fee. He might have limited it in tail, or have given the remainder or reversion to some person, other than the devisee. A witness, Henry Disbrow, says, that he asked deceased as to the further disposition of his estate, to which he replied, that as to the bequests already set down, he had made up his mind upon them, for some time past, but as to further bequests he had not made up his mind, and must take some further time to think upon the subject; upon which the deponent left the room for some time, and upon his return found the deceased, as he thought, incapable of proceeding any further in the business.

It is again said, the word,further, is to be used in connection with' the preceding clause, in which a fee is given to the devisee therein named in apt words. But the defendant cannot derive any benefit from this source, because it is an entirely distinct sentence from the preceding. It needs no reference to it to give it meaning and effect; it is perfectly intelligible, standing by itself; and because the devises are to different persons. The terms, item,’ ‘ further,’£ moreover,’ are commonly used in the beginning of a new devise or bequest, without indicating any particular intention in the disposition of the property. (4 Rawle, 66.) The cases where this word, or words of similar import have enlai’ged the estate into a fee, are such as in Neide v. Neide, (4 Rawle, 75,) which was this: testator devised as follows, — Principally and first of all, I give and bequeath to my eldest son, J. N. my late purchase from E. C., as also four acres of woodland in a corner, &c. The land purchased from E. C. was purchased in fee simple, and it was held, that a fee passed to the devisee, both in the land purchased from E. C. and in the four acres of woodland. This Court were of opinion that the words my late purchase, indicated an intention to give a fee; that there was a necessary connection between the two pieces of property; that in fact, the latter would be entirely inoperative without reference to the former, and that as it was to the same person, it carried a fee in the four acres of woodland.

Taking then, this to be the case of a sale and conversion of land into money, according to the principles before stated, it follows that it remains so, unless there has been an election to take it as land. Land once impressed with the character of money, must remain so impressed, until some person elects to take it in its original character as land; and this leads to the question, whether the devisee, Archibald Cummings Craig, so elected to consider it. It must be observed, that nothing which took place during the minojjity of Archibald Cummings Craig, can make any difference in the result, for an infant cannot by any act of his, change the property : nor can his guardians; nor is the fact that the property remained unsold until the devisee arrived at full age, entitled to any weight whatever in the decision of this question. It also seems to me to be the better opinion, that taking the estate, and holding it one year after he attained his age, would not of itself be an election, although entitled to some weight. It is certain, that the devisee may take it himself in the shape of land or money ; but when there has been a conversion in the contemplation of the Court, the onus of showing that the property ought to pass under a different denomination, by proving an act in the donee, indicating his intention to that effect, lies on the party who claims it in its original estate. It is therefore incumbent on the defendant, who claims the property as land, to show that Archibald Cummings Craig elected so to consider it; and this the will itself sufficiently shows. It is devised by the testator, as real estate; and I suppose it never entered his mind, when he took possession of the property, to hold it in any other character. And this argument, derives strength from the preceding clause, where the testator devises the other house which he held by the same devise, in the language peculiarly appropriate to the limitation of a fee simple in real estate. It must also be observed, that the testator in his bequests of his personal funds, omits words of inheritance; which would seem to show that however little he may have been benefited by his education, he was aware of the difference in the nature of estates real and personal.

If then, at the death of Archibald C. Craig, the property in dispute is to be treated as real estate, is it to be regarded as a new acquisition by him, or must it be taken as property which descended to him from his father, or was it devised to him as real estate by his father; and did it under the Act of 1794, pass to his heirs, on the part of his mother, as well as to the heirs on the part of his father ?

The plaintiff’s counsel contend, that the power to sell is a naked power, and that until the execution of the power, the land descends to the heir, who at common law, would be entitled to the profits. As a consequence' of this doctrine, it is insisted that the descent is not broken, but that Archibald C. Craig took the legal estate, and that in electing tq take the property as land, he is in by descent, the equitable following the nature of the legal estate. But we do not view the authority as of this description: we think it clear that the authority to the executors is coupled with a trust and an interest. I accede to the principle that a power of sale, does not of itself give the legal estate, a.nd that where a man directs his executors to sell, the land descends until sale to the heir at law; and he may enter and enjoy the rents, issues and profits, for his own use. A devise of land to executors to sell, passes the interest in it, but a devise that executors shall sell the land, or that land shall be sold by the executors, gives them but a power. Whether the descent is broken by a naked power, it is unnecessary to decide, nor since the act of the 31st March, 1792, is the question a point of much importance in Pennsylvania. However it may be as to a naked power, there can be no doubt, that in the case of a power coupled with an interest, as we think'this to be, the descent is broken. In considering the extent of a power, the intention of the parties must be the guide. Sugden on Powers, 459. A reference to the terms of the will, is the only course by which to determine whether a naked power only is intended to be given ; for even if the terms made use of in creating the power, detached from the other parts of the will, confer merely a naked power to sell, yet if the other provisions of the will evince a design that at all events, the lands are to be sold, in order to satisfy the whole intent of the will, it is not a naked power, but is coupled with a trust and an interest. 14 Johns. R. 527, Franklin v. Osgood. 2 P. Wills. 311. Here it is necessary that the land should be sold to satisfy the whole intent of the will, as it is plain that he has directed the whole estate to be turned into personalty, under an impression as we suppose, that was the best disposition of his estate for the benefit of his only son and heir. The testator not only authorizes, but he directs his executors to sell; and by a necessary implication from the will, they are authorized and directed to rent the houses devised, until they shall be sold according to the directions of the will. The character of such a power does not depend upon the quantity of interest given, for a trustee invested only with the use and profits of the land for the benefit of another, has an interest connected with his power; and it has been held, that an authority to 'lease is sufficient to exempt a power from the character of a mere naked authority to a stranger. 2 Johns. Ch. R. 29. This is a devise to the son, who is at the same time the heir of the testator; but supposing that they were not one, what authority would an heir have to enter on the land, and take the profits ? It would defeat the whole intention of the will. The executors must have an interest to carry into effect the general purposes of the testator. It results as a necessary implication from the whole will, that this is not as is contended, a mere naked power to the executors, but that it is an authority, coupled with a trust and interest, and as such that the descent is broken. But did this property in legal contemplation as land, come to the devisee from his father?. We think it did not. It came to him impressed with the character of money. It was by an act of his own that it was reconverted into land. The very act of election implies a choice between the two species of property, and effects a change in the nature of the property itself. If the property had been sold by the executors in pursuance of the directions of the will, and the devisee had become the purchaser, as he might, there can be no doubt that it must be viewed in the light of a new acquisition. Where then can be the difference, when by an act of his own he elects to consider that as land, which otherwise has the impress fixed upon it as money. It is a purchase of it as land, by a sur^ render of the right which he undoubtedly had to consider it as money. And there is no hardship in this to the relations ex parte paterna; for if no election had been made, the property would have gone to his relations in equal degree, without regard to the source from whence the property was derived. And this seems to have been the opinion of the Court in Allison v. Wilson, (13 Serg. & Rawle, 330).

Judgment reversed, and a venire de novo awarded.  