furvived her. The court would not invest the fund in land; but held it, with the accumulations from the death of the grantor, and the future payments, as a vested intereft in the fon at 21, and as perfonal eftate belonging to his adminiftrator. 3 Vef. jun. 41. 1796. Swann v. Fonnereau. 39. Eftate fold, subject to a mortgage, was exonerated in favour of the heir by the perfonal eftate of the purchafer, his acts having clearly made it his perfonal debt. Wood v. Hunting ford, 3 Vef. jun 128. May 1796. 40. Mortgaged estate descends; the mortgagee preffing, the fecurity is affigned: a mere covenant by the heir upon that occafion for payment, does not make it his perfonal debt; neither does a mere covenant by the purchaser of a mortgaged estate to indemnify the vendor make it his perfonal debt. Ibid. 131. 41. Real estate devifed to be fold, and the produce difpofed of with the perforal, with a power to direct the fund to be laid out in land: no fuch direction having been given, it was held perfonal property. Maberly v. Strode, 3 Vef. jun. 450. July 1797. 42. Under the conftitution of the Hand-in-Hand fire-office, the heir, to whom, upon the death of the infured, the property being freehold defcended, cannot have the benefit of the policy without affignment. Mildmay v. Folgham, 3 Vef. jun. 471. July 1797 43. Neither an heir at law nor next of kin can be barred by any thing but a difpofition. Pickering v. Lord Stamford, 3 Vef. jun. 493 Aug. 1797. 44. Where there was a power to fell, but the legal estate was not devifed, it défcended to the heir, till the execution of the power. 3 Vef. jun. 513. Aug. 1797. Warneford v. Thompson. 45. Money bequeathed to A. to remain at intereft, or to be by him laid out in real estates to go with other eftates devised. A. being tenant in tail of the real estates, and being entitled under an allignment of the money from the reverfioner, fubject to contingent limitations, difpofed of the money by will. The court inclined in favour of the difpofition, upon the ground that A. might have called for the money as abfolute owner: but it was established upon the option to continue it perfonal eftate. Amler v. Amler, 3 Vef. jun. 583. Jan. 1798. 46. Devise of a copyhold (duly furrendered) to A. and his heirs in truft for B. and his heirs. Upon the death of B. without heirs, the heir of the trustee has no equity to compel the lord to admit him, and his bill was difmiffed, but without cofts. Williams v. Lord Lonsdale, 3 Vef. jun. 752. May 1798. 47. The court will not interfere between reprefentatives by changing the nature of property in execution of a trust, the object of which has failed. Croft v. Slee, 4 Vef. jun. 60. Julg 1798. 48. An heir at law has no equity, except to remove incumbrances in the way of his legal title: he cannot call for an inspec tion of deeds in the poffeflion of the devifees. Lady Shaftesbury v. Arrow *. Arrowsmith, 4 Vef. jun. 66. wich, 2 Vef. jun. 679. July 1798.-Vide Ivg v. Mekeo 49. If an estate is devifed charged with legacies, which fail, the devifee, and not the heir, fhall have the benefit of it. Reunell v. Abbot, 4 Vefjun. 811. 50. No equity between the heir or devifce and the personal reprefentative to convert property from the ftate in which it was found at the death. Attorney-General v. Bowyer, 5 Vef. jun. 303. 1800. 5. To convert real or perfonal property, as between the real or perfonal reprefentatives, from the ftate in which it is found at the death, the characters of land or money muft, by the truft, covenant, &c. be imperatively and definitively affixed to it: otherwife, if there be an option, there is no equity. The bill by the heir, claiming the property as real eftate, was difmiffed without cofts. Wheldall v. Partridge, 5 Vef. jun. 388. May 1800. 52. Whether the Journals of the Houfe of Lords, delivered to a peer, go with the title? Upton v. Lord Ferrers, 5 Vef. jun. 801: March 180r. 14Vin 279. (S) Interim Fftate. In what Cafes the Heir fhall take it. İ. W 2. Directions in a will to purchase an eftate, which is afterwards fwallowed up by an inundation; the money fhall not go to the executor, but as the rents of the purchafed lands would have gone. lbid. 3. If there be an, executory devife of lands, with a provifo in the will, that the profits, beyond an allowance, fhall be laid up for the first perfon who fhall be entitled to the lands, when he attains 21, and the teftator dies, leaving no perfon in effe to take under the limitations; until fuch perfon be born, the profits are to be looked upon as an undifpofed of refidue, and defcend to the heir at law. An if fuch perfon comes in effe, and dies, the heir at law is ftill entitled to the profits, beyond the maintenance, during the infant's life, and to all profits afterwards, till a perfon comes in effe entitled to an eftate for life in poffeffion. 1 Vef. 268. Trin. 1749. Hopkins v. Hopkins.-Vide Ca. Temp. Talb. 44. 4. Devife in truft for the child of teftator's daughter; if the die without iffue, over; the intermediate profits, till the contingency happens, accumulate, and defcend to the heir. Gibson v. Lord Montfort, 1 Vef. 490. June 1750. Vide tit. Devife (R. c), (P. a), pl. 2., (N. b), and (O. b), fect. 2. paffim. (S. 2) Marriage Portion. Where it fhall go to the [F] I. Heir. WHE HETHER a portion charged on land be given with or without interest, by deed or by will, if the perfon dies before the age at which it becomes payable, it fhall fink into the estate. 1 Atk. 552. Mich. 1738. Boycott v. Cotton. 2. A provifo in a fettlement that 1000l. fhall and may be laid out by the trustees in the purchase of lands. Where there is a power to lay out money in land, but the original intention was, that it should be confidered as money, if not vested in land, it fhall not be confidered as fuch, and go to the heir. Stamper v. Miller, 3 tk. 212. Feb. 1744. 3. R. B., by articles previous to his marriage, covenanted to lay out 2000l. in the purchase of lands, and to fettle the fame on himself for life, and after his decease, on Mary his intended wife for life, and after both their deceases, to trustees to fell, and the money arifing by fuch fale to be divided among the children of the marriage, to fons at 21, daughters at 21 or marriage, provided no fale be made till one of the shares become payable. The purchafe was made accordingly, afterwards Elizabeth, the only furviving child, died unmarried, but had attained the age of 21; the abfolute proprietor of these eftates, Elizabeth, having taken them as land in her lifetime, and done acts to shew that the intended them to be confidered as real estates, they must be held as fuch, and go to the heir. Crabtree v. Bramble, 3 Atk. 680. March 1747 4. Money, by marriage articles to be laid out in land to the use of husband and wife for life, then to the children as they fhould appoint; in default of appointment, equally; if but one, to that one in tail; reverfion to the husband in fee. There was one daughter; the trustee pays the money to her and her hufband; the not being fui juris, nor feparately examined; the payment is not fufficient to make it to be confidered as money, and the fifter of the half blood may claim the reverfion in fee of the father. Cunningham v. Moody, 1 Vef 174. Dec. 1748. Vide Portions (I). (T) Where he shall have the Surplus. 1. AN executor in truft for an infant of a leafe for ninety-nine years, determinable on three lives, on the lord's refufing to renew but for lives abfolutely, complies, and changes the years into lives; on the infant's death under age and inteftate, this fhall be a truft for his administrator, and not for his heir. Witter v. Witter, 3 P. Wms, 100. Hil. 1730. 2. Devife 14 Vin 281. 14 Vin. 281. 2. Devife of a rent-charge, to be fold to pay legacies amounts ing to 8ool., and if the rent-charge fhould fell for 1000l. the tef= tator gives a further legacy of 200l.; it fells for more than 8c0l. and less than 1000l.: the excefs beyond the 800l. belongs to the heir as a refulting truft. Stonehoufe v. Evelyn, 3 P. Wms. 252. Eaft. 1734. 3. Teitator, amongst other legacies, gives a legacy of 51. to B. his brother and heir, makes his wife C. his fole heiress and executrix of all his lands, tenements, goods, and chattels, to fell and difpofe of the fame as the thould think fit, to pay his debts and legacies. This is a gift to her of the furplus in fee, and there is no refulting truft for the heir. Rogers v. Rogers, 3 P. Wms. 193. Ca. Temp. Talb. 268. S. C. 4. R. S., incumbent of the rectory of B., devifes his perpetual advowfon, donation, and patronage of the parith church of B., and all glebe lands, profits, and appurtenances to the fame belonging, to G. S., willing and defiring her to fell and difpofe of the fame to Eaton college, and on refufal, to Trinity college, Ox ford, and on refufal, to any college in Oxford, or Cambridge, who will be the beft purchafer. I here is no refulting truft of the advowson of B. to the heirs at law of the teftator, but a devife of the beneficial inter-ft therein to G. S., with an injunction only to fell to particular focieties. The general rule, that, where lands are devifed for a particular purpose, what remains after fuch purpofe is fatisfied, refults, admits of feveral exceptions; there can be no conftructive truft, but where the intent of the teftator is apparent willing and defiring, G. S. to fell, c. are more properly words of injunction than truft, but where a real estate is devised to be fold for payment of debts, there is clearly a refulting truft. Hill v. the Bishop of London, 1 Atkı 618. Feb. 1738. 5. Teftator devifes the perpetual advowfon of S. to trustees, upon truft to prefent his fon W. to this living, and that after the church fhall next after his death be full of an incumbent, then to fell the perpetuity, and to apply the profit arifing from the fale, first for payment of debts, and the overplus he diftributes in thirds to his daughters: the trustees prefented W. the son, who died before the advowfon was fold, leaving a daughter an infant, who, by her next friend, brings her bill, infifting that, after debts and legacies paid, there is a refulting truft to the heir at law of the teftator in the advowfon; but the court was of a different opinion. Hawkins v. Chappel, 1 Atk. 62. Nov. 1739. 6. There is no refulting truft under the ftatute of frauds and perjuries, but what is called fo by operation of law; where an eftate is purchafed in the name of one person, and the money is paid by another, he has a refulting truft; or where it is declared only as to part, and nothing faid as to the reft, what remains undifpofed of refults to the heir at law. Lloyd v. Spillett, 2 Atk. 150. March 1740. 7. A bare 7. A bare intention, or even negative words, will not exclude an heir at law from infifting on a refulting truft. Cook v. Duckenfield, 2 Atk. 565. May 1743. 8. Where a legacy was to be paid out of the real estate, and the legatee died before the contingency happened on which he was to take, the legacy was held to fink into the eftate for the be nefit of the heir at law. Attorney-General v. Milner, 3 Atk. 112. July 1744. 9. If a child, who has a legacy payable out of land, dies before the contingency happens, it goes to the heir; à fortiori if it be given to a stranger. Ibid. 10. Legacy to the executors of the will, and land devised to C. to pay 1000l. to the executors, the refidue to a charity; this 1000l. is a charge on the real estate, which, by the mortmain act, is not well difpofed of, and results to the heir at law. Arnold v. Chapman, Vef. 108. July 1748. 11. If a man by will gives all his worldly eftate, and all his teal and personal eftate, to trustees, to pay feveral annuities and other fums out of perfonal, and if that be deficient, out of rents and profits of real; and as to the refidue of real and perfonal, to fuch children as his daughter fhall have, equally: if the dies without iffue, to others; and directs, that on the death of annuitants their annuities fhall go back to the refidue, and go to those in remainder over, in cafe his daughter dies without iffue, otherwife to be divided amongst them equally; the furplus rents and profits of the real estate accumulate, and do not go to the heir at law; but whether to the daughter's children or to those in remainder over, quære. 1 Vef. 485. Trin. 1750. Gibfon v. Lord Montford. 12. The refulting truft of a copyhold eftate, as well as of a freehold, is within the ftatute of frauds. Withers v. Withers, Amb. 151. Nov. 1752. 13. One devifes his eftate to be fold, and gives the refidue of the money to arife by the fale to a charity, and made a refiduary legatee, the charity legacy being void, fhall go to the teftator's heir. Gravenor v. Hallum, Amb. 643. March 1767. 14. E. G. conveyed feveral fums of money, fecured by mortgages, amounting to 60,000l., to truftees in truft to be laid out in the purchase of lands, to the ufe of himself for life, remainder as to fums, to the amount of 28,000l. to his wife for life, remainder to his fon R. C. for life, with feveral remainders over, remainder to J. L. in fee; and as to fums, amounting to 23,000l. to R. C. for life, with feveral intermediate remainders; remainder to T. L. in fee: and as to one particular mortgage, of 8500l., and fome leafehold eftates to fecure annuities; the furplus to R. C. in fee, with power of revocation. By his will he gave these leasehold eftates, and the mortgage for 850ol., together with another mortgage of 6700l., in truft to fecure the annuities; the furplus intereft, or rents of the lands purchased, to be paid to R. C. for life, and to be fettled in the fame manner as his other VOL. V. eftates F |