
    (Chancery;)
    Craig v. Leslie et al.
    
    ■ft. C., a citizen of Virginia, being seized of real property in that Mato, made his will: “In the first place 1 give, devise, amt 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 ba living at my death, v ill sell my personal estate to the highest bidder on two years credit, and iny 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.” on alien, “all the proceeds of my estate, real and personal, which I have herein 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 arid executors fur tho purposes afore-mentioned.” Hold, 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, directed in wills, or other instruments; to bb 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 ube it is given a court of equity will permit the cestui que trust to take tho money, ortho land at his election, if he elect before (he conversion' It made.
    But in case of tho death of the cestui que Irvsl, without having determined his election, the property will pass to' his heirs or personal re» presentutives, in the same manner as it would hayo done if the conver,eion had been made, and the trust executed in his’life lime.
    Tho case, of Roper v. Radeliff, 9 Mod. 167. exmined ; distinguished from the present case ; and, so far as it conflicts with it, over» •ruled.
    ‘ 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 followihg 'question ; viz. Whether the legacy given' to Thomas Qraig, 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 trustée 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 Ik and four others, “all my estate, read and personal, of which I may die seized or possessed,'in any part of America, in special trust, that the jafore-mentioned persons, or such ‘of them as maybe fiving'atmy death, will sell my personal estate 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 o.f trust. In the second place,! 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 tc be sold, to be remitted unto him accordingly as the payments are made, and I hereby declare, the aforesaid John Leslie,” and the Jour other persons, “to.be. my-trustees and executors' for the purposes afore-mentioned.”
    The attorney general ot Vitginia, on behalf of that state, filed a cross bill against the plaintiff in the' original 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, ahd the present suit was instituted some time in the year 1815.
    
      Feb. 20th.
    
    Mr. Nicholas, (attorney general of Virginia,) argued,
    that most, if not all.nations, have imposed some restrictions upon the capacity of aliens, to hold pío-' perty 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 Américaá. citizens in England. By (he law . of, England an alien cannot take a freehold !¿y 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 ev.en take a lease of a house for habitation. 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 siid of the laws against the Papists, “whether the policy be sound or not, so dong 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 ia 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 
      trust',can only take for the king’s use. All the reasons, of policy which incapacitate him from holding a.J^gal estate in lands, equally apply to disable him from, hólding an equitable estate in the same species of.,property; it is the usufruct, of which the law aim? to; deprive him. Trust estates are governed by precisely .the same rules as legal estates. '‘The forte!, where it is adjudged,” says Lord Mansfield, speaking in a court of equity,- “is the only difference between trusts and legal estates. Trusts here are considered, as between the cestui que trust, and trustee, (and all claiming -by, through or under thpm or in consequence of their estatesj) as the ownership and as legal estates, except when it can be pleaded in bat of this right of jurisdiction. Whatever would be the rule of- law if it was a legal estate, is applied in equity to a trust estate.” Again ; speaking of the case of Banks v. Sutton, he says, ‘'So that I take it by the great authority of this determination ‘on clear law and reason, cestui que trust is actually and absolutely seized of the freehold in consideration of this court; apd> tha% therefore, the legal consequence of an actual seizure of the freehold, shall in this court follow for- the benefit of one in the 
      pastS’
      
       The' cestui qxie trxxst, in the present case, takes an [interest which extends to the whole estate, ■ with, an- election to take it as land. Nobody but he-can compel the trustees to'sell, and they may. hold the trust, and apply it for the benefit of the cestui que,trust forever! ’' This is precisely the mode dn which the monastic apd other ecclesiastical institutions, perverted the invention of uses,..in order to evade the statutes of mortmain,'anu they might be applied in the saíne manner to evade the disability of aliens to hold1 a legal estate in'real property.' Even supposing this tiá 'be a personal trust; it' is a devise of the profits growing out of land, which would, until a sale, accumulate'for the advantage of an alien, and is equivalent to a devise of the land itself to- an-alien. There is nothing compulsory upon'the. trustees to sell, - and by collusion between them arid the cestui'' que trust, the sale might be postponed forever, whilst ana-lien enjoyed the profits of the' lands, and. transmitted them to his representative. But this devise of the proceeds of the- sale of lands was, in effect, a devise- of real property. The leading case on- this súbject is strongly fortified by subsequent decisions. In Roper v. Radcliffe, it was solemnly. determined that lands given in trust, or derived to pay debts, and legacies, shall be deemed as money in respeet to creditors, but not in respect to the heir at law or residuary legatee, in respect to whom they shall be deemed in equity as lands: and that, consequently, the residue, in that case,being devise.d to persons incapable of holding an interest in lands, the devise was voi$.— The application of this principle to the present cá'Sfe is obvious. Nor can the consequence of ..forfeiture be avoided by the cestui que trust electing to take the property as money. The exercise of the right of election for such a purpose was denied in Roper v. Radcliffe, and in the Attorney General v. Lord Weymouth. The rights of th e commonwealth may be enforced in a court of equity, because the disability of an alien to hold lands for his own benefit is hot considered as á penal forfeiture, but arises merely from the* policy of the law. It has, therefore, been adjudged in equity, that he cannot demur to the discovery of any circumstances necessary to establish the fact of alienage.
    
    Mr. Wickham, contra,
    argued, that this was a mere question as between the heirs and personal representatives. If the property in question be real property in the view of a court of equity, it is admitted that an alien cannot hold it. But, on the other hand, if it be personal property, it cannot be denied that he may take and hold it. If, as between citizetts, it be personal, property, it must be so as respects aliens. A court "of lawr.au only 'look todhe legal quality of the property. At Jaw the interest is vested in the trustee; but a court of equity takes notice of the title of the cestui que trust, as beneficially interested, and regards the quality of the estate as respects his interest only. It is incontestible,‘that there may be pérsonal trusts of real property. Such are the familiar instances of trusts for the payment of debts and legacies charged on land; trusts for raising portions, and bankrupt’s estates; in all of which the property goes to the persqnal representatives, without any question as to the citizenship or alienage of t^ie cestui que trust, it is an elementary principle, which lays at the very foundation of the doctrine of equity, that land directed tobe sold and .converted into money, and money directed tó be employed in the purchase of land, are considered as that species of property into which they are directed to be converted. • And it is immaterial in what manner the direction is given, whether by will or deed; or in what state the property is found, in land or not. The argument on the other side, that the alien having the right to elect that the property should not be sold, therefore it must be considered as land, may be an-J swered by another, equally good: That having the right to say it shall be sold, it must, therefore, be considered as money. But it is denied that an alien has an election to make it real property.- As an infant cannot make an election for want of capacity ; so an alien cannot elect to take, because he cayhot hold real property. The right of' election is a benevolent principle, applying - for the benefit, not for^the injury of parties. The cestui que trust, in this case has elected to take it as money, by his bill praying for a sale. But, supposing him to have been silent, the elementary writers lay down the rule that it remains personal property. As the papty who has his election, may determine to take the property as land tó be sold for his benefit, or money to be investeJ in land, the question can only arise between the heirs and persoual representatives. Some ca^es, which appear' to be exceptions to the rule, confirm it, Such are the cases of a resulting trust to the heir, where the purposes of the trust are fulfilled, or at an end; the cases where the union of title to the, estate, as real and personal, extinguishes the demand, and the cases where the intention is obscure. The rule extends to all cases where the quality of money is imperatively fixed on land by the will or deed. As to Roper v. Radcliffe, its analogy to the present case is remote; it has always been considered a very questionable case; and it is not to be put in competition with .the inore direct authorities already cited. By the act of Parliament, under which that case was determined, a Catholic cannot even purchase ; but at common law, an alien .may not, only purchase, but hold against all the world except the crown. That case iá not confirmed by Lord Chancellor King, in Havers v. Hewes. On the contrary, he says, that if the point “were res integra, it would be, indeed, very questionable.” Its reasoning is also questioned by Lord Mansfield. The case of the Attorney Ge* neral v. Lord Waymouth does not fortify it, and has no analogy to the case now before the' court.. Here is no devise of the annual perceptions of profits, but the cestui qu'eJruit is entitled to me proceeds of the sale of the land as a sum in gross; and there is no precedent for confiscating profits of an estate purchased by an alien, which profits were actually, received before office found. Nor can the argument, that, by'collusion between the trustee and the alien cestui que trust, the latter may go on for ever receiving the profits of. land, be supported'; because it is arguing against a right from its possible abuse, (always an unsound mode of . reasoning,) and, because the same thing may happen between an alien and any Ostensible owner of land. All that a court of equity* in any case, would do, would be to refuse to decree the land to the adieu, and compel him to relinquish hi's claim unless he took the money. But equity Will not aid to enforce a confiscation. Thus, where the testator directed money to be laid out iii land, the money not having been laid out, Lord Rosslyn held, that the crown, on failure of heirs, had no equity against the. next of kin to have it laid out in real estate in order to claim by escheat.
    
    The Attorney- General, in reply,
    admitted, that in ..considering the legal operation of the devise, the national character of the devisee to be laid out of view ; and-that the estate, Which its terms would pass could not be varied by any consideration of that char•acter. As an alien is capable of talcing (though not of holding) a direct fee in the hinds, he is also capable of taking any lesser estate than a fee, under any •ngodification of trust, express or implied. There is nothing, therefore in the character of an alien to repel, or even to narrow, the legal operation of the terms of the.devise. Whatever estate they would passto a citizen, the same they will pass to an alien. What estate then would pass to a citizen ? It is said, a personal estate only, because, the testator having, directed the land to be sold, has siámped upon it the character of personal property. But this is not the whole effect of the terms of the devise. They give to the legatee the option of taking the land; and in so doing, they give him an interest in the land itself. This option thus erst upon the legatee is not the effect of any act to be done by him. To create the right of election, it is not necessary that he should actnally elect, or that he should be able to elect. The mistake on the other side results from confounding the right of election with the exetcise of that right. The right to choose is the legal effect of the devise, and stamps a character on the estate. The fact of electing is a subsequent act, wlrch may or may. not take place ; but which, whether done or not, cannot alter either the character of the devise, or the option which it casts upon every one capable of taking under it, or the legal estate in the lands which this option creates. The option thus given to the devisee by the terms of the will is an operative principle, which, whether exercised or not, still gives eo instanti that the will takes effect, an . interest in the lands, which, if the devisee be incapable of holding, they pass to the commonwealth. So far. is the effect of this option from awaiting an act of election to be done by the devisee, and depending on such act, that it has been decided where a subsequent election had been made to ' take as money, by persons disabled to hold the interest in latid, that the act of election came too late to1 change the character of the devise, which, by virtue of the option it carried with it, had thrown upon the devisee an estate in the lands the instant the will itself began its operation. .It is true that the decision in Roper v. Radcliffe is founded on a particular act of parliament against papists; but this is no objection, if the act of parliament creates precisely the same disabilities in respect to the Catholics which the common law had created in relation to aliens. For if their res* pective disabilities as to the land be the same, a devise of lands to one, will receive precisely the same construction as a devise of lands to the other. The object of the stat. of 11th and 12th of William III. ch. 4* was to render Papists aliens, in regard to lands in England. The stability of the government being supposed to depend upon this policy, “the design of the maker of this law,” says Lord Chief Justice Parker, “was, first, to get the lands of this kingdom out of the hands of Papists.” — “And, secondly to prevent them from making any- new aquisition.” The first objection does not relate to aliens; but the second applies precisely to-them, and the provisions of the act, as to- Papists,, are-substantially the same with those of the common law as to aliens. It is not, however, the disabilities of either which are to affect the construction of this devise : that construction is first to be made on the terms of the devise itself, and then whatever legal conse-. quence would result from the disability of the one, will equally result from that of the other-. In Roper v. Radcliffe, it was held that, though lands devised to be ab“' solutely sold for the payment of debts and legacies, were to be considered as money, so far as creditors and’ legatees were concerned, yet, as to the residuary devisee they were to be considered as lands, because-of his. option to prevent the sale by paying the debts- and legacies or . his option to have a decree fox the sale of so much only aa the debts and lega- . . . ° cies should require; and, it was determined in that case, that the residuum devised to the Papists should' be considered as land, and, therefore, within the prohibition of the statute. The authority ofthis-case has been- repeatedly recognized in subsequent decisions, all of which . concur to show that# though a devise of lands to be sold is considered as personal estate, as to creditors and specific legatees, yet it is considered as land in respect to the. heirs and residuary legatees. And \yhere none of it is wanting for the payment of debts and legacies; the whole may. be retained as 'land. This doctrine is founded on the right of "election, resulting from the devise.- But no actual election need be made to produce the legal effect; it is the same, though the parties are disabled to elect: they cannot defeat its operation by electing to take as. money; and where nothing is done indicative of an election, the principle still operates.
    
      March 11th.
    
    
      
      
         Co, Lit. 2. b Hargrave’s notes. Calvin’s case, Co. Rep. part 7. 18. b.
      
    
    
      
      
         Ib.
      
    
    
      
       Foone v. Blount, Cowp. 466.
    
    
      
      
         The King v. Holland, Styles, 20. Alleyn, 14. Rolle's Abr. 154. 534. The Altorney General v. Sir George Sands, 130, 131. 3 Ch. Rep. 33. Hobart, 214. 1 Mod. 17. Hardres, 495. Cro. Jac. 512. Gilbert on Uses and Trusts, 243. 1 Com. Dig. 300. 1 Bac. Abr. let. C. tit. Alien, 132. Harrison's case, Mr. Jefferson's correspondence with Mr. Hammond, State Papers, Waite's ed. vol. 1. p. 374.
    
    
      
      
         Burgess v. Wheate, 1 W. Bl. 160.
    
    
      
       Il. 161, 162.
    
    
      
       1 Salk 228. 1 Eq. Cas. Abr. 98. 1 Ves. 41. Co. Litt. 48. a. Cro. Eliz. 190.
    
    
      
       Roper v. Radcliffe, 9 Mod. 167. 181.
    
    
      
      
         The Attorney General v. Lord Weymouth, Ambler, 20 Davers v. Dewes, 3 P. Wms. 46. Hill v. Filkens, 2 P. Wms. 6. 10 Mod. 483. The King v. The Inhabitants of Wivelingham, Doug. 737.
    
    
      
      
         The Attorney General v. Duplessis, Parker, 144. 5 Bro. Parl. Cas. 91.
    
    
      
       Doughty v. Bull, 2 P. Wms. 323, Attorney General v. Johnson, Ambl. 580. Yates v. Compton, 2 P. Wms. 303. Fletcher v. Ashburner, 1 Bro. Ch. Cas. 501. Ackroyd v. Smithson, Id. 503. Berry v. Usher, 11 Ves. 87. Robinson v. Taylor, 2 Bro. Ch. Cas. 589. Williams v. Coade, 10 Ves. 500. Biddulph v. Biddulph 12 Ves. 160.
    
    
      
      
        Edwards et ux. v. Countess of Warwick, 2 P. Wms. 171. Biddulph v. Biddulph 12 Ves. 160. Thornton v. Hawley 10 Ves. 129
    
    
      
       Seely v. Jago, 1 P. Wms. 389. Earlom v. Saunders, Ambl. 241.
    
    
      
      
         Grimmit v. Grimmit, Ambl. 210
    
    
      
      
         Hewitt v. Wright, 1 Bro. Ch. Cas. 86. And see 16 Ves. 191. 18 Ves. 174. 1 Ves. & Beames, 272.
    
    
      
       Pultney v. Lord Darlington, 1 Bro. Ch. Cas. 226.
    
    
      
      
         3 P. Wms. 46.
    
    
      
      
         Foone v. Blount, Cowp. 467
    
    
      
      
        Ambl. 20.
    
    
      
      
         Walker v. Denne, 2 Ves. Jun. 170.
    
    
      
       9 Mod. 191.
    
    
      
      
         Hill v. Filkins, 2 P. Wms. 6. Davers v. Dewes, 3 P. Wms. 46. Carrick v. Fergus, 2 P. Wms. 362. 2 Bro. Parl. Cas. 412. 2 P. Wms. 4. The Attorney General v. Lord Weymouth, Ambl. 20. The King v. The Inhabitants of Wivelingham, Doug. 737.
    
   Mr, Justice Washington

delivered the opinion of the court. The incapacity of an alien to take, and to hold beneficially, a legal or equitable estate in real property, is not disputed by the counsel for the plaintiff; and it is admitted by the counsel for the state of Virginia, that this incapacity does not extend to personal estate. The only inquiry,, then,-which this court has to make is, whether the aboye clause in the will of Robert Craig, is to be construed, under all the circumstances of this case, as a bequest to Thomas Craig of personal property, or as a devise of the land itself?

. Equity con. siders land, diu> be verted into the purchase of land, ab land, Where the *>hole benefidal interest in the land in one Money in tí!e to'th'c ^person foe whose use it is given, a court of eguity ««tu? íue'íVusí the conversion W *

Were this a new question, it would seem extremely difficult to raise a dou.bt respecting it. The common sense of mankind would determine, that a devise of moriey, the proceeds of land directed to be sold, isa devise of money, notwithstanding it is to arise^ out of land; and that a devise of land, which a testator by his will directs to be ( purchased,, will pass an interest in the land jtself, without regard to the -character of the fund out jf which the púrchase is to be made,.

The settled doctrine of the courts of equity corres1 J pond with this obvious construction of wills, as as of other 'instruments, whereby land is directed to be turned into money, or money into land, for benefit of those for whose use the conversion is ded to be made. In the case of Fletcher v. Ashburner, (1 Bro. Ch. Cas. 497.) the master of the rolls says, that “nothing is ’ better established than this principle, 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, and this, in whatever manner the direction is given.” He adds, “the owner of the fund, or the contracting parties,' may make land money, or money ¡and. The eases establish this rule' universally.** This declaration is well warranted by the cases to» which the master of the rolls refers, as well as by many others. (See Dougherty v. Bull, 2 P. Wms. 320. Yeates v. Comptan, Id. 358. Trelawney v. Booth, 2 Atk. 307.

The principle upon which the whole of this doctrine is founded is, that a-court of equity, regarding the substance, and not the mere forms and circumstances of agreements and other instruments, considers things directed or agreed to-be done, as having been actually performed, where nothing has intervened which ought tó prevent a performance. This qualification of. the more concise and general rule, that equity considers that to be done which is agreed to' be- done, will comprehend the cases which coia¡e under this head of eTli{D

Thus, where the whole beneficial interest in the mo- . . . , ney in the one case, or in the land m the other, belongs to the person for whose use it is given, a court of equity will not compel the trustee to execute the -trust' against the wishes of the cestuy que trust, but will per-n _ .si mit him to'take the money or the ■ land, if he elect to" do so before .the conversion has' actually been made : this election he may make, as well by acts or dec" c^earty indicating á d termination to that effeet,-'as by application to a court of equity. It is this election, and not the mere right to make it, which changes the character of the estate so as to make it real or personal, at the will of the party entitled to the beneficial interest.

BUt ¡jfé«¡J^^his eUc* tion, the pro-to^ls • ifeirs' “ in the same manner as .it would have done >1 the con, version had

time. If this election be not made in time to stamp the property with a character different from that which the will or other instrument gives it, the latter accompanies it, with all its legal consequences, into the hands of those entitled to it in that character. So that in case of the death of the cestuy que trust, out having determined his election, the property, will pass to his heirs or personal representatives, in the same manner as it would have done had the trust been executed, and the .conversion actually made in his life

In the case of Kirkman v. Mills, (13 Ves.) which was a devise of real estate to trustees %npon trust to sell,'and the'moneys arising, as well as the rents profits till the sale, tobe equally divided between the testators, three daughters, A. B. and C.' The estate' was, upon the death of A. B. and C., considered and treated as personal property, notwithstanding the jcestuy que trusts, after the death of the testator, had entered upon, and occupied the land for about twro years prior to their deaths; but no steps had been taken by them, or by the trustees, to sell, nor had any requisition to that-effect been made by the former to the latter. The master of the rolls was of opinion that the occupation of the land for two years was too short to presume an election. He adds, “the opinion of Lord Rósslyn, that property was to be taken as it happened to be at the death of the party frorp whom the representative claims, had been much doubted by Lord Eldon, who held, that without some act, it must be considered as be.ing in the state in which it ought to be; and that Lord Rosslyn’s rulé was new, and not according to the prior cases,

'The case of Roper v. RadI87?e’xamined.to

The same doctrinéis laid down and maintáined in the.case of Edwards v. The Countess of Warwick (2 P. Wms. 171.) which was a covenant on marriage to invest 10,000Z., part ofthe lady’s fortune, in the pur . .chase of land in fee, to be settled on the husband fo life, remainder to his first and every other son in tai male, remainder to the husband in fee. The only-son of this marriage having died without issue, and 'in testate, and the investment ofthe money not having been made during his life, the chancellor decided that the money passed to the heir at law ; tha,t it was in the election of the son to have made this, money, or to "have disposed of it as such, and that, therefore, even his parol disposition of it would have been regarded i but that something to determine the election must be done.

This doctrine, so veil established by the cases which have been referred to, and by many others' which it is unnecessary to mention, seems to be' conclu . ■ . ,. , . , ,, . . . ., , sive Upon the question which this court is called upon decide, and would render any farther investigation ofit useless, .were it not for the case of Roper v. Radcliffe, which was cited, and mainly relied upon, the counsel for the state of Virginia.

The short statement of that case' is as follows j John Roper conveyed all his lands to trustees and their heirs, in trust, to sell the same, and out ofthe proceeds, and of the rents and profits till sale, to pay certain debts, and the overplus of the money to be paid as he, the said John Roper, by his will or otherwise should appoint, and for want of such appointment for the benefit of the said John Roper, and his hqiisBy. his will reciting, the said deed, and the power reserved to him in the surplus of the said real estate, he ,bequeathed several pecuniary legacies, and then gave the residue of his real and personal est te to William Constable and Thomas Radcliffe, and two. o./iers, arid to their heirs. By a codicil to this will, he bequeathed other-pecuniary legacies; and the remainder,'whether in lands or personal estate,- he gave to the .said. W. C‘ and T. R.

Upon a bill filed by W. C. and T. R. against the heir at law of John Roper, and -the other trustees, praying to have the'trust executed, and the residue of the money arising from the sale-of the'.lands to be paid over to them ; the heir at law opposed the execution tpf the trust, and claimed the land as a resulting trust,* upon the ground of the incapacity of*Constable and Radcliffe to take; théy being papists. The decrée-of ,the court of chancery, -which was in favour of the papists, was, upon appeal to the house of lords, reversed' and the title of the heir at law sustained; six judges against five, being in his favour.

Without stating at large the opinion upon which the reversal took place, this court will proceed, 1st; To examine thu general principles laid down in that'opinion ; and then, 2d. The case itself, so far as it has been' pressed upon us as an authority .to rule the question be • fore the court.

In performing the first part of this undertaking, it will not be necessary to' question any one of the premises laid down. in that opinion. They are, 1. That land devised to trustees, to sell for payment of debts and legacies, is to be deemed as money. ThA is the general doctrine established by all the-cases referred to in the preceding part of this opinion. That the heir at law has a resulting trust in such so fair as it is of value, after the debts and lega- ; 7 . . cíes are paid, and that he may come into equity and restrain -the trustee from selling more than is neces- *° Pay'Uie debt and legacies ; or he may offer to them himself, and pray to have a conveyance of J . , ,. part of the land not. sold in the first case, and th® whole in the latter, which property will, in either case»1 land, and not money. This right to call for a conveyance velT correctly styled a privilege, and it one which a court of equity will never refuse, unless ' there are strong reasons for refusing it. The this doctrine, proceeds upon a principle is incontrovertible, that w'here the testator 5 merely directs the real estate to be converted into ' , . , money, for the purposes directed in his will, so much °f the estate, or the money arising from it, as .is not efEectually disposed of by the will, (whether it arise from some omission or defect in the will ilself, or . from any subsequent accident, which prevents the devise from taking effect,) results to the heir at law, as the old use not disnosed of. Such was the case of Crewe v. Bailey, (3 P. Wms. 20.) where the testator having two sons, A. and B. Qand three daughters, devised his lands to be. sold to pay his debts, &c. and as to the moneys arising by the sale, after debts paid, gave JB200 to A. the eldest son, at the age of 21, and ^he fesidue to bis four younger children. A. died before the age of 21, in consequence of which, the bequest to him failed to take, ^effect. The court decided that the £200 should be considered as land to descend to the heir at law of the testator, because it was in effect, the sáme as if so much land as was of the value of ,£200 was not directed to be sold, but was sufferred to descend. The, case of Ackroyd v. Smithson, (1 Bro Ch. Cas. 503.) is one of the same kind, and .establishes the same principle. So, likewise, a money provision under, a marriage con-' tract, to arise out of land, which did not take effect,, on account of the death of the party for whose benefit it was intended, before the time prescribed, resulted as money to the grantor, so 'as to pass under a residuary clause in his will. (Hewitt v. Wright, 1 Bro. Ch. Cas. 86.).

Land «1 to to sell for payment of debts to Adeemed

law has a suiting trust such lands, and legacies may com'e into ■Sihithetrus" tee from sulkcient to nwy^offer pay them self, and pray a conveyance of the part of the land not qpse^'and ^tlfe latter which property in either case will be Zand and not money.

°te» appears to harfljpeeii to stamp upon oMh/ianTd? ly<)f persunai ty,not only/or particular IvM^but toaU ^aim S’of the-at trtStt.- is deestate’is cons? personaí!* be

But even in cases of resulting trusts, for the fit of the heir at law, it is settled that if the . of the testator appears to have been to stamp upon the proceeds of the land described to be sold, the quality of personalty, not only to subserve the ticular purposes of the will, but to all intents, the r r ’ claim of the heir at law to a resulting trust is ed, and the estate is considered to be personal. This was decided in the case of Yeates v. Compton, (2 P. Wms. 308.) in which the chancellor says, that intention of, the will was to give away all from the heir, and to turn the land into personal estate, and that this was to be taken as it was at the testator’S death, and ought not to be altered by any subsequent accident, and decreed the heir to join in the sale •f. the • land, and the money. arising therefrom to be paid over as personal estate to the representatives of the annuitant, and to those of the- residuary legatee. In. She case of Fletcher v. Ashburner, before referred to, the -suit was brought by the he.ir at law- of the. testator, against the personal representatives and the trustees claiming the estate upon the ground of a resulting trust. But.the court decreed the property, as money, to the personal representatives of him- to • whom the beneficial interest in the money was bequeathed, and the master of the rolls observes, that the cases of Emblyn v. Freeman, and Crewe v. Bailey are those where real estate being directed to be sold, some part of .the disposition has failed, and the thing devised has not accrued to the representative, or dévisee, by which something- has re-> suited to the heir at law.

■' It is evident, therefore, from a view of the above bases, that the title of the heir to a resulting trust can never arise, except when something is left undisposed of, either by some defect in the will, or by some subsequent lapse, which prevents the devise from taking effect; and not even then,-, if it appears that-the in-. tent-ion of the. testator wa's' to change the nature of the estate from land to money, absolutely and entirely, and not merely to serve the purposes of the will. But the ground upon which the title of the heir rests is, that whatever is not disposed of remains to him, and partakes of the o'ld use, as if it had not been directed to.be sold.

The third proposition laid down in the case of Roper v. Radcliffe, is, that equity will extend, the same privilege to the residr.ary legatee which is allowed to the heir, to pay the debts and legacies, and call for a conveyance of the real estate, or to restrain the.trustees from selling more than is necessary to pay ihe debts and legacies.

Equity will extend the toThe re'sTduawhich’i^fííow ofiegacies, conveyance of ni<>r® than i» necessary *6 pay the debts 1®s't<a®s'

■. The condu^ed from**the thJtrin¡c^ respect to th* residuary lega tee such a do cimWered as soecjjklegatees

This has, in effect, been admitted in the preceding part of this opinion; because if the cestui que trust, of the whole beneficial interest in the mopey to- arise trom the sale of the land, may claim this privilege, it follows, necessarily, that the residuary legatee because he is,, in effect,, the beneficial' owner the whole, charged with'the 'debts and legacies., from which he will be permitted to discharge it, by ing the debts and legacies, or may claim so much the real estate as-may not be necessary for that pur- • pose.

But the court cannot accede to the which, in. Roper v. Radcliffe, is deduced from the establishraent of the above principles. That sion is, that in respect to the residuary legatee, such a devise shall be deemed as land in equity, though in respect to the creditors and specific legatees it is . , • , , . • de&med as money. It. is admitted, with this qualm. cálion, that, if the residuary legatee thinks proper to avail himself of the privilege of taking it as land, by fáakihg an election in his life time, the property will then assume the character of land. But. if. he does liót máte this election, the property .retains its racter of personalty to every intent and purpose. — The cases before cite'd seem to the court to be'conclusive Xtpon this point; and none were referred to, or have come under the view of the court, which sanction the conclusion made m the unqualified terms. used in the case of Roper v. Radcliffe.

Aa to the idea that the ’character of the estate is affected by this right of election whether the right be claimed, or not, it appears to -be as repugnant to reason, as we think it has. been shown to be, to principle and authorities. .Before any thing can be made of the proposition, it. should be shown that this right or privilege of election is so indissolubly united with the devise, hs to constitute a part of it, and that it may be exercised in all_ cases, and under all circumstances.— This was, indeed contended for with great ingenuity and abilities by the counsel for the state of Virginia, blit it was not proved io the satisfaction of the court.

It certainly is not true, that equity will extend this privilege in all cases to the cestui que trust It will be refused if, he be an infant. In the case of Seely v. Jago, (1 P. Wms. 389,) where money, was devised to belaid out inlandnn fee, to be séttledJon'A. B. and C. and . their heirs, equally to be divided;. On the death of A., his infant heir, together with B. and C., filed their, bill claiming to . have the money, which was decreed accordingly as to B. and C.; .but the share of the infant was ordered to be puf out for: his benefit,, and the reason .assigned was, that he was incapable if marking an election, and that such election, if permitted, would, in case of his death, be prejudicial. to his heir.

In the case of Foone v. Blount, (Cowp. 467.) ItOjd Mansfield,.who is-compelled to acknowledge-the authority of Roper v. Radcliffe in parallel cases, combats the reasoning of Chief. Justice Parker upon this doctrine of election, with irresistible force. He suggests, as the true answer to it, that though in a variety of cases this right exists, yet it was inapplicable to the case of a person who was disabled by law from taking land, and that therefore a court of equity would, in such a case, decree that he should take ¿he property as .money.

The case of Walker v. Denne, (2 Ves. Jun. 170.) seems to apply with great force to this part of our subject. The testator directed money tobe laid out in lands, tenements, and hereditaments, or on long terms, with limitations applicable to real estate. The money not having been laid out, the crown, on failure of heirs, claimed the moneyas land. It was decided that the crown had no equity against the next of kin to have the money laid out in real estate in order to claim it by escheat. It was added, that the devisees, oh becoming absolutely entitled, have the option given by the will'; and a déed of appointment by one of the cestui que trusts, though nfeme covert, was held a sufficient indication of her intention that it should continue personal, against her-heir claiming it as ineffectually disposed of for want of her examination. This case is peculiarly strong, from the circumstance, that the electtion is embodied in the devise itself; but this was •not enough, because the crown had no equity to force an election to be made for the purpose of producing an escheat.

Equity would surely proceed contrary, to its regular course, and . the principles which universally govern U, to allow the right of election where it is dt sired, and can be lawfully made, and yet- refuse to decree the money upon the application of the-alien, upon no other reason, but because, by law, he is'incapable to hold, the land; in short, to consider Kim in the same situation as if he had made an election, -which would have been refused had he asked for a conveyance. The more just and correct rule would seem to be, -that where the cestui que trust is incapable to take or tó hold the land beneficially, the .right of election does not Nexist, and., consequently, that the property is- to be considered as being -of that species into which it is directed tobe .concerted.

'The case of dfffiT V"distin •“** An; wen may lake, by pur chase, a free hold, or other interest in land and may hold it -against all the world excep the king; and even - against him until office found; and is not accounta ble for . the rents and pro fits previously received.

Having made these observations upon the principles laid down in the case of Roper v. Radcliffe, and upon the argument urged at the bar in support, of them, very few words will suffice to show that, as an authority, it.-is'inapplicable to this case.

The incapacities of a papist under the English statute di 11 and Wm. III. c. 4, and of an alien .at *aw> are extremely dissimilar. ^ The former is incapable to take by purchase, any lands, or profits out of lands ; and all estates, terms, and any other in? ■forests ox profits whatsoever out of lands, to by, mac/e, Suffered, or done, to, or for thé use of such person? or upon any. trust for him., or to, or for the benefit, or, relief.of any such person,^are declared by the statute, to be utterly void.

Thus, it appears' that he cannot even take. His. incapacity is not copfinert to- land, b.u.t. to any profit, interest, benefit, or relief,"in or out .of it. He is not |p?ly disabled .ftom..takiqg.. csr. haying the benefit ofiany Such interest, but the will or deed itself,. which attempts to pass it, is void. Iii. Roper v. Radcliffe, it was strongly insisted, thrft the money given to the papistj which was to be the proceeds of the-land, was a Drofit or interest out of the land.. If this • be so, (and' it is not immaterial in this, case to affirm or deny that position,) tiien the .wiil of John Roper in relation to the bequest to the two papists ioas void under the statute; apd if so, the fight of the heir at law of the testator, to the residue, as a -resubiog trust , was incontestable. The cases above cited have fully established that principle. In that case, too, U16 rents and profits, till the. sale, would, have belonged to the papists, if they were capable of taking, which brought the case still more strongly within the statute ;■ and this was much relied on, not only- in fea • soning upon the words, but the policy of the statute.

Now, what .is the situation of an alien? He can not only take an interest in - land, but a freehold interest in the land itself, and may hold it against all the world but the king, and even against him until office found, and he is not accountable for -the rents and profits previously received. In this case the will being valid, and the. alien capable of taking under it, there can be no resulting trust to the heir, and the claim of the state is founded solely upon a supposed equity, to have' the land by es’cheatj as if the alien had, or could upon the principles of a court ' of equity have elected io take the land instead of the money. The points of difference between the two case are ,so striking that it would be a waste of time .to notice them in detail.

It may be further observed, that the case of Roper v. Radcliffe has never, in England, been applied to the case of aliens; that if s authority has been'submit' ted to with reluctance, and is. strictly confined in its application to cases precisely parrallel to it. .Lord Mansfield, in.the case-of Foone v. Blount, speaks of it with marked disapprobation; and we know, that had Lord Trevor been present, and declared the opin. ion he had before .entertained, the judges would have been equally divided.

The case of the Attorney General and Lqrd Weymouth, (Ambler. 20.) was also pressed upon the court, as strongly supporting that of Roper v. Radcliffe, and as bearing upon the present case.

- The fiist of these propositions might be ' admitted ; although it is certain that the mortmain act, upon which that case was decided, is even stronger in its expression than the statute against Papists, and the chancellor so considers it; for, he says, whether the surplus be considered as money or land, it is just the ¿ame thing, the statute making void all charges-and encumbrances on land, for the benefit of a charity.

But if this case wege,. in all respects, the same as Roper v. Radcliffe, the observations which have been made upon the latter, would all apply to it. It may be remarked, however, that in this case, the chancellor avoids expressingany opinion upon theques* tiont whether the jjaoney to wise from the sake of the land, was to be taken as personalty or land ; and although he mentions the case of Roper v. Radcliffe, he adds, that he does not depend upon it, as it was imsüateriaí whether the surplus was to bé considered as land or money under the mortmain’ act.

Upbn the whqle, we are unaruinnudy of opinion, that the legacy given to Thomas Craig, in the will of Robert Ciaig, is to be consi.lere.1 as a bequest of personal estate, which he is capable of taking for his own benefit.

Certificate accordingly. 
      
      
         Vide ante, p. 12. Jackson ex dem. State of New-York v. Clarke, note e.
     