
    M’Cormick and Wife vs. Cantrell, et al.
    
    The father of an illegitimate child, procured the passage of an act by the Legislature, to have his name changed; which act also declared “that the child shall in all respects, both in law and equity, be upon an equal footing with the other children of the father:” Held, that whatever might he the effect of this law, in enabling the ilegitímate child to inherit from his father, the latter could not, nor could the legitimate brothers and sisters of the half blood inherit from him.
    Testator devised to his wife one third of all his properly, both real'and personal, and requested that as soon as his property could be disposed of at its value, his executors should give his wife her propoition without delay. The other two thirds were given to his child, (o,f which his wife was then enseint), should he have one. He then directed that his executors should have sold, as soon as possible, after his death, alibis property, both real and personal, and the proceeds of such sale vested in such stock, (after giving his wife her proportion), as they, in their opinion think will yield the best interest, the proceeds of which be given to his wife for five years, exclusive of her one third: Held, that the real estate was converted out and out, and upon the death of the child, intestate, his distributee, and not his heir, was entitled, although the property was not sold.
    This is a bill in equity; it states, that about the 16th July, 1822, Robert E. Searcy, a Lieutenant in the Navy, made his last will, and soon after died at Washington City. This will was duly proved, and he thereby devised to his wife Isabella R. Searcy, the complainant, and her heirs, forever, one third of all his property, both real and personal; and he requested that as soon as his property could be disposed of at its value, his executors should give to his said wife her proportion without delay. The other two thirds of his property were given and bequeathed to his child, should he have one, should he not, it was his request that it be' divided between his brothers and sisters, Orville H., Elvira S., Susan D., Granville, William, and James Searcy, or their heirs. He further requested, that his executors should have sold as soon as possible after his death, for value, all his property, both real and personal, and the proceeds of such sale vested in such stock, (after giving his wife her proportion), as they in their opinion think will yield the best interest; the proceeds of which, testator gave to his said wife Isabella for five years, exclusive of her one third. Testator set down in his will, his real estate, with the estimate oí its value, as made in 1819 by his father, and it consisted mostly of lots in the town of Nashville. Stephen Cantrell, Robt. Armstrong, and William M’Auley, were appointed executors, of whom, Stephen Cantrell alone proved the will and qualified in Tennessee. It further states, that the mother, Isabella R. wap pregnant at the time of the death of her husband, and on the 16th September, 1822, a son was born, who was called after his father Robert E. Searcy. This child died on the IStb July, 1827. His mother intermarried with Hugh M’Cormick, and letters of administration on the estate of the deceased son were granted to complainants. The real estate was not sold by the executor, and he remained in possession and rented out the property, paying the rent to the mother, in part.
    CompPants. further state that, Robt. E. Searcy, the elder, was an illigitimate child of his father, Robert Searcy, of Nashville; that the other defendants, except Cantrell and Armstrong, were the legitimate children of Robt. Searcy, and were not entitled as heirs of Robert E. Searcy, the child, in any event. Complainants seek a decree for the whole property, either that it be sold, and the proceeds decreed to them, or that the title be vested in them, the mother being the next of kin and heir to her child.
    The answer of Stephen Cantrell admits the execution of the will, birth and death of the child; states that the real estate had not been sold because a good price could not be obtained therefor; insists that the two thirds of the property bequeathed in the will, should go as real estate to the legitimate children of Robert Searcy, deceased, w’ho are called brothers and sisters of Robert E. Searcy, the testator, who was legitimated by the act of Assembly of Tennessee, passed October 29th, 1801,. which is exhibited with the answer, and is as follows:
    
      r i í- i • f , ■ , “ I hat from and alter the passing ot this act, the name of Robert Eastin Chapman shall be altered to that of Robert Eastin Searcy; and that he the said Robert Eas-tin Searcy, shall in all respects, both in law arid equity, be upon an equal footing with the other children of the said Robert Searcy, which have been, or may be born in wedlock.”
    The other defendants, who are the children of Robert Searcy, rely upon Cantrell’s answer, and claim the property. Armstrong disclaims any interest, having never qualified as executor.
    One of the lots specified in the will, was conveyed by Robt. Searcy to Robt. Renfro for life, remainder to Robt. E Searcy, the testator. The consideration expressed in the deed, was one thousand dollars, and love and affection to his son.
    Two other lots were, on the 6th of August, 1790, conveyed by the commissioners of Nashville to Elizabeth Chapman, the mother of Robert E. Searcy the testator, and descended to him, from her, by virtue of the act of 1819, ch. 13.
    The Chancellor rendered a decree for complainants, from which, the defendants appealed to this court.
    
      F. B. Fogg & D. Craighead, for complainant.
    The complainants insist, that by the express provisions of the will, the infant, Robert E. Searcy, who died without brother or sister, or the issue of such, took the estate, absolutely, impressed with the character of personalty, and was unable to take it in a different manner from that in which he received it. It therefore passed to his personal representative, and the mother being next of kin, is entitled to hold the two thirds bequeathed to the infant, as personal property. The will expressly provides, that the estate be sold as soon as possible, for value, and one third be given to the wife, the other two thirds to be vested in such stocks as will bear the best interest; and that, in addition to the one third, the wife should have the proceeds, meaning the interest of the money for five years. The testator meant to give to the produce of the real estate, the quality of personalty; to all intents, it was to be taken as personalty; there was no particular purpose of the will, to convert the real estate into personalty, which purpose being answered, or having failed, there would be a resulting trust to the heir at law, but it is a conversion, out and out, for all purposes whatsoever. The will could not be carried into effect; the intention of the testator would wholly fail, were the two .thirds of his property bequeathed to his son to be considered as real estate'. The counsel referred to the following authorities: Ashley vs. Palmer, 1 Meriv. Rep. 296; M’Clelland vs. Shaw, 2 Schoale & Lefroy, 538; Leigh & Dalzell on conversion of property, English edition, page 128, 13S, 139, et seq.; Craig vs. Leslie, 3 Wheaton, 563,-577; 8 Vesey, 235; 1 B. C. Reports, 503; 3 Peere Williams, 21; 16 Vesey, 188. As to the period from which a conversion by will of realty into personalty may be supposed to commence, they cited Leigh & Dalzell, 48, 50, 57; 5 Maddox, 25; 1 Vesey, jr. 366; 8 Vesey, 556; 6, 536; 19 Vesey, 387. But,
    2. Supposing the two thirds bequeathed to the infant son were real estate, to whom' would it descend. Suppose he took the estate by purchase, or by descent from his father, are the children of Robert Searcy the heirs of this child. By what law? The act of Assembly operates nothing, except to change the name, and perhaps as it was passed upon application of his reputed father, to give the son, Robert E. Searcy, a right to a share of his father’s estate. It goes no farther. The infant had no heirs on the part of the father, his mother was his only heir. See the case of Drake vs. Drake, 4 Devereux’s Reports page 110,
    
      
      W. E. Jlnderson, for defendants.
    The position, that whenever a will directs land to be sold, a court of equity will consider it as money, is not correct. Whenever land is'directed to be sold, and it is necessary to sell it, to effect the intent of the testator, then the court of chancery will direct its sale, and .will consider the estate as money, so far as a regard to the testator’s purpose, makes it necessary so to consider it, and no further.
    It is the gift oí the proceeds of the sale, which gives an equity to the legatee of those proceeds.
    If a man, by his will, directed that all his real estate should be sold and turned into money, and makes no disposition of the money, it is denied that a court of chancery can entertain a bill to compel the sale. It may be important to consider under the-will of Robert E. Searcy, where the fee vested on his death. As regards the part of the estate in dispute, to wit: the two thirds, the defendants assume that it vested-in Robert E. Searcy, the infant, and not in the executors; they had a naked power to sell without an interest. 3 Cond. Ch. Rep. 205; 1 Co. Litt. 113, a note 144; Cro. Cha. 382; 2 P. W. 308.
    It is insisted, also, that it vested in the infant by descent, and not by the will, as he was the only heir of the testator, 3 Cruise’s Dig. Title, 38, Descents ch. 23, sec. 12; 4 Cruises’s Digest Title, 38; Devise Ch. 8, from sec. 2 to 15. '
    If the foregoing propositions be correct, we are to look to the object of the testator in directing the sale. . This will directs all his property not otherwise disposed of, to be sold as soon as it can be, for its value, and the one third given to his wife immediately; the other two thirds he directs to be vested in such stock as his executors may think will yield the best profit, and the proceeds to be given to his wife for five years. This direction is given, after the devise of two thirds of his estate to his child; and after this direction, nothing follows re~ specting the child, or its interest; wherefore, it is very apparent, that the sale was designed alone for the sake of the legacy to the wife, and not for the sake of making the legacy to the child more beneficial, or turning its interest into money.
    It is not denied that the wife can ask for a sale, in order to take her legacy in the form it was given. Her legacy is not in dispute. The question is, in what light are we to look upon the two thirds of the child? whether as land or money?
    When land shall not be turned into personal estate, or more sold than is necessary to pay the legacies, the heir shall have the surplus. 2 Cro. Rep. 589; Robertson vs. Taylor, to same effect, 11 Yes. 89; Berry vs. Usher, 2 Vernon, 425; 10 Yes. 500, Williams vs. Coade; 1 Bro. Ch. Rep. 503, Ackroyd vs. Smithson; 3P. W. 22.
    These authorities establish, that when land is to be turned into money for an expressed object, and in fact sold and turned into money, when the expressed object of the sale is accomplished,. the heir is entitled to the surplus, and not the next of kin or residuary legatee of personalty, notwithstanding the residue exists in money. See 1 John. Rep. 508, Dunscomb vs. Dunscomb.
    The ground of defence which, perhaps, will require the most consideration, rests upon the following proposition, which we assume, viz: Where land is directed to be sold by will, and the proceeds devised, if the interest vests before the sale is made in fact, and the devi-see dies so vested with the entire estate, there is no equity in favor of the next of kin- against the heir to have the character of the estate changed, for the mere purpose of his inheriting in preference to the heir.
    This proposition embraces our case precisely, and it is believed to be correct without any qualification. In 2 Ves. Chiify vs- Parker. The question was between the next ■of Un and the heir of the testator; the Chancellor Lord _ ... . c ., T n itosslyn, said there was not one spark ot equity. In 2 fes.-175, 6, Walker vs. Dunn, same Chancellors very emphatic; he says between the heir and next of kin, their rights are pure legal rights; “chance decides what shall be real, what personal, neither has a scintilla of equity to make the property that, which it is not in fact.”
    in examining the cases on this subject, which are numerous, attention must be given to the effect of 'trustees intervening, in whom the legal estate is vested; without this observation, some of the cases would seem to militate against our general proposition, and the cases found •in the books would seem to be contradictory.
    If the land be devised to trustees, with directions to sell and the proceeds given over, and the devisee die, it is admitted his next of kin can come to chancery for the sale. 13ut why? Because the legal estate is out, some one must come for the aid of the court; neither the next of kin nor the heir have any legal right; one of them is to be declared the cestue que trust. The heir has no right to say the/use was for him. The court has nothing to govern them in'compelling the trustees to execute their trust, but the direction of the will; all it can do is to compel the trustee to do what the will directed, or to do it itself, as it may in this State, by sale and decree of, title to the purchaser.
    If has never been questioned, that the legatee had an election to take the fund as land and dispense with the sale, and very slight acts evidencing such election, are received as sufficient; and when this election is made, it has never been pretended that the next of kin to the . legatee, had any pretentions -of claim after his’ death. The possession of the fund, of being vested with the fundj whether ' in the form of land or moneyj is equivalent to election; and if the person entitled to the money, or land, once thus vested, dies, his heir and next of kin stand in the same relation to each other and the fun(j as jn case 0f election made. Where there are trus-7 tees holding the legal estate, they have to abide by the condition or character of the fund as it chances to be at the death, and there is no spark or scintilla of equity between them. 5 Yes. 396, and 8 Ves. 227, Wbilsalevs. Partridge; 2 Ver. 295, Chichester vs. Beckerstaff; 1 Bro. Ch. Rep. 236, Putney vs. Darlington; 1 Bro. Ch. Rep. 503, Akroyd vs. Smithson.
    The cases which have been relied on by the complainants counsel, will be noticed and explained.
    In 16 Ves. 188, Wright vs. Wright, the legal estate was in trustees. It does not appear whether the sale had in fact taken place; it is presumble it had; if the property had been in fact sold, then the case only supports the principle we assume; the fund belonged to the dauglher as it existed at her death.
    4 Madd. 256, Smith vs. Clanton, the legal estate was in trustees, and the right of election was admitted.
    2 Meriv. Rep. 521, Francis S. Stead vs. Francis Wingate, the husband was seized of the legal estate during life, but he was under a covenant to convey to trustees; and every moment of his life, his wife had an equity to call for the execution of that covenant. For this reason, the husband was not the entire owner at his death, haying in himself the entire qualification both of heir and executor; therefore, the property was not £Cat home,” in him, in the words of Lord Thurlow, in Put-ney vs. Darlington.
    It was admitted in this case, by the very eminent counsel, Sir S. Romilly, in page 528, that where the estate is out, the person entitled has an election to determine its character; and where the person entitled becomes the absolute owner, having in himself the entire qualification both of heir and executor, yet makes no declaration of election, the property shall descend according to the quality in which it was left by him at his death, or as Lord Thurlow and Seldon expressed it, the property coming home to the person entitled, whether it be real . . . or, personal, merges the distinction between these qualities ■which may have been stamped upon it by a will or set-dement. 1 P. W. 172, Linger vs. Sawray, is a confir-¡nation of our position.
    In 3 Wheaton, Craig vs. Lesler, trustees intervened, and beside, trustees were necessary .to make effectual the testator’s wishes. In this case, the learned counsel, Mr. Wickham, admitted the exception to die general rule, where union of title to the estate, as real and personal, extinguished the demand.
    
      Rucks and Meigs argued on the same-side.
   Peck, J.

delivered the opinion of the court.

The words of the act of Assembly do not of themselves-make the illigitimate son of Searcy his héir; by the terms used, it is left even questionable whether he could take as such with the legitimate children. Such partial and limited legislation, not intended to give a general rule by which a whole community shall be governed, but passed with a view to a special ease, has generally been looked upon with suspicion; and though such acts may be passed, and become operative under the constitution, where, from the very frame of them, it is evident no right or obligation is infringed or impaired, but where the moving cause of the act bears the impress of the purity of mo*' tive. In such case no harm ensues frQm acting under it, and the courts will let it in to the extent intended, and this intent must be gathered from the words of the act.

The terms used, taken in connection’with the caption of the act, or either taken separately, do not of necessity make the testator one of the heirs of the elder Searcy. “Shall in all respects, both in law and equity, be upon an equal footing with the other children of the said Robert Searcy,” are terms too general to create in* the illigitimate child an inheritable quality; a quality which takes away a portion of the rights of the heirs . „ J , ,. . ,. , ° . , , .... . . proper, oí bcarcy, by dividing the estate with the ilugiti.-mate child.

Again: as has been well observed by counselin debate,. if it be permitted men to adopt into the family by act of Assembly, children of pleasure, it may follow thafsuch ^orphans may be thus adopted, and their estates become partable between different families, or go to the foster father or his children, in exclusion of actual brothers and sisters, or other blood relations on whom the law casts the estate. There is no good policy in extending the act'of Assembly beyond its obvious import. Men desirous of providing for their illigitimate children, have the power to do so by deed or last will. So, too, we’ admit the power to give to a natural child by act of Assembly, proper words being employed; but by thus giving the dower does not make the child such an heir to the father, as must necessarily control the descent of the estate the child may acquire; it may be generous thus to give, but generosity on one side does not fix inheritable relationship.

The case before us, carries with it, at least persuasive evidence that Searcy, the elder, did not contemplate the act as extending the length now conceded; for the testator does not take the estate by descent from his father, hut by conveyance, so that he held it by purchase, and not as heir. But whatever may have been the views of the elder Searcy, the law did not make him the heir to his natural son; and as those who now insist on considering it as real estate, cannot take otherwise than by tracing themselves as of the same consanguinity; the right is cut off, the natural son being of the blood'of no one.

In this view of the case, there is no forced construction, to reach results, as it is argued, against the claim of the personal representatives taking all together, there is not a scintilla of equity; so on this branch of the case, there is just as little. It is a pure question of law, and the moment the act of Assembly cannot be brought to toll the right, the case is settled, and the mother takes as the other child.

If it became necessary to go into the question, we are of opinion the authorities prove, that the will created this property a fund, and that it is to be considered as money, not land.

Surely we must look to the intention of the testator; the estate was to be sold, and in case a child should be born, then two persons are provided for, the child and the widow; the parts each are to take, are specially designated. The case of Hill against the Bishop of London is very analogous to the present. We are' following the rule laid down in that case. “The testator has definitively stamped this real estate with the character of personalty, not only for the purposes of his will, but likewise for all intents and purposes whatever; the heir is therefore not only excluded from the land,-but likewise from every interest which may arise from its sale, for being thus converted intp personalty, the distributee is entitled.”

The schedule of the property, and the value put upon it in the will, goes strongly to show the inténtion. It was not only to identify the property, but to fix a probable amount in money it might command on sales made. See the cases on this point brought together in Leigh & Dalzell on property, ch. 6.

Decree affirmed.  