#### Chas. B. Farmer, adm’r, *vs.*A. M. D. Spell and others.

*Wills and Testaments*— Administration—Debts—Equitable *Conversion.*

Testator directed “ first, that all my just debts be paid and discharged *;*and, secondly, that the remainder of my property be disposed of as follow».” He then devised all his ulands on the Round O, known as the Ash Hill plantation,” to his son, u to be valued by three disinterested persons, and to be received by him at said valuation, as so much of his share of my estate” — directed that his daughter should u receive in negroes, the amount of the valuation of the land given to my son j” and, after providing for other children to be born, should there be any, bequeathed the remainder of his personal property to his wife:— *Held,*that there was no equitable conversion of the lands into personalty, and that as between the devisee and legatees the personal estate should be exhausted in payment of debts before resort could be had to the real estate devised.

BEFORE DUNKIN, CH., AT COLLETON, FEBRUARY, 1859.

Paul W. Spell, being seized and possessed of a plantation known as his Ash Hill plantation, and of some slaves and other personal estate, died in March, 1857, leaving a last will and testament, as follows :

“ In the name of God, Amen. I, Paul W. Spell, of the aforesaid State and district, being of sound mind and memory, and considering the uncertainty of this frail and transitory life, do therefore make, ordain, publish and declare this to be my last Will and Testament, viz.: First, that all my just debts be paid and discharged; and, secondly, that the remainder of my property be disposed of as follows, viz.: First — I will and bequeath to my son, Eldred Spell, all my lands on the Round 0, known as the Ash Hill plantation, to be delivered to him whenever he shall become of age, to be valued by three disinterested persons, and to be received by him at said valuation, as so much of his share of my estate, *542to have and to hold the same forever. Secondly — It is my will that my daughter, Sarah Harriet, shall receive in negroes the amount of the valuation of the land given to my son, Eldred, to be delivered to her when she arrives at the age of twenty-one, to have and to hold the same forever. Third— Should my wife, Amanda M. D. Spell, have another child or children by me, then the said child or children to receive in negroes, an amount equal, each, to my daughter, Sarah Harriet, to receive the same at the age of twenty-one, to have and to hold the same forever. Fourth — It is my will that my wife, Amanda M. D. Spell, should have the remainder of my personal property her natural life, and after her death to be equally divided among my children, share and share alike, the child or children of a deceased child to receive his or her portion so dying. Fifth — It is my will, in case either of my children die without issue of body, that the share of said child revert back to my surviving children. And lastly — I nominate and appoint my brother, Henry McF. Spell, executor to this, my last Will and Testament, and hereby revoking all others by me made, declare this to be my last Will and Testament, executed this, the 20th January, in the year of our Lord one thousand eight hundred and fifty-seven.”

The executor named in the will refused to qualify, and the complainant became administrator with the will annexed.

The debts proved to be very considerable, and this bill was filed against the devisee and legatees and some of the creditors for a sale of the estate, and praying that the assets be administered in this Court. The principal question made was, whether as between the devisee and legatees the real and personal estate should contribute equally in payment of the debts or whether the personal estate should be exhausted before resort could be had to the realty.

Dunkin, Ch. The pleadings present the facts upon which the judgment of the Court is sought.

By the will of the testator, it was clearly his intention to *543place his son and daughter upon an equal footing, in the distribution of his estate. To carry this purpose into effect, his Round 0 plantation is directed to be valued by three disinterested persons, and to be received by his son at that valuation, as so much of his share of his (testator’s) estate: And the daughter is directed to receive in negroes, the amount of the valuation of the land given to the son. The same principle is applicable, as was declared in *Perry vs. Logan,*5 Rich. Eq., 202. As between these legatees it was an equitable conversion by the will itself, of the land into personalty, as much so as if testator had directed the plantation to be sold, in order to ascertain the value, and fix the equality between them.

It is suggested in the pleadings, and seemed to be conceded at the hearing, that the entire personalty would be insufficient to pay the debts'of the testator, in which event a sale of the real and personal estate would probably be necessary or expedient. But the Court cannot assume the insufficiency without a report from commissioner or special referee, to whom an euquiry was directed by the order, 23 February, 1859. It may be proper to enlarge that order by directing the commissioner to report the probable value of the personal estate of the testator, and of what the same consists ; and it is accordingly so ordered and decreed ; and that he have leave also to report upon the necessity or expediency of a sale of all or any part of the testator’s estate. Upon the filing of said report, parties may be at liberty to apply at chambers for such order as may be necessary.

Finally, it is ordered and decreed, that the plaintiff, as administrator with the will annexed, account before the special referee for his actings in relation to said estate, and that the special referee report thereon at the next sitting of this Court.

Eldred Spell, defendant, appealed from so much of the *544decree as decided that there was an equitable conversion of the lands devised to him, into personalty :

1. Because the devise to him of the “ lands on the Round 0, known as the Ash Hill plantation,” was a devise of the laud itself as such; and if so, there was no equitable conversion of it into personalty.

*2.*Because, if it was the intention of testator to place “his son and daughter upon an equal footing in the distribution of his estate,” it is equally clear that it was his intention that the “Ash Hill plantation” itself was to go into the possession of, and be enjoyed by, this appellant.

*Trucy,*for appellant.

1. The constructive conversion of property, by the Court of Equity, is effected by applying the principle: *that which ought to be done, will be considered as done,*1 Jarmau on Wills, 523 ; *Fletcher vs. Jlshburner,*1 Bro. Ch. Ca., 497. And realty can be converted into personalty, *only,*where *a sale*has been directed. 1 Rop. Leg., 503; 1 .Sanders, U. & T., 300, marg.

It is evident, that only where the character of the estate is directed to be altered, and this has not been done, that occasion can arise for the application, in this connection, of the principle above mentioned. And, in every case that can be found, of the equitable conversion of realty into personalty, a sale had been ordered, and the proceeds were what was given.

In our own cases, *Postell vs. Postell,*1 DeS., 173; *Mathis vs. Griffin, 8*Rich. Eq., 79; *Wilkins vs. Taylor,*8 Rich. Eq., 291 ; *North vs. Valk,*Dudley Eq., 212; *Perry vs. Logan, 5*Rich. Eq., 202.

In the English cases, *Mallabar vs. Mallabar,*Ca. Temp. Talb., 79 ; *Ogle vs. Cook*(cited in *North vs. Valk); Spink vs. Lewis, 3*Bro. Ch. Ca., 355 ; *Digby vs. Legará,*in note to *Cruise vs. Barly,*3 P. Wms., 2.2 ; *Wright vs. Wright,*16 Ves. *545Jr., 1S8; *Durow vs.*Motteaux, 1 Ves., Sr., 320 ; *Chitty vs. Parker,*2 Ves., Jr-., 271; *Fletcher vs. Ashburner,*I Bvo. Ch. Ca., 497; Law Lib., vol. xl., 546 ; *Ackroyd vs. Smithson,*1 Bro. Ch. Ca., 503; Law Lib., vol. xl., 571; *Embleyn vs. Freeman*(cited in *Fletcher vs. Ashburner); Flanagan vs. Flanagan,*lb.; *Collins vs. Wakeman,*2 Ves., Jr., 683. So in the leading American cases, *Craig vs. Leslie,*and the dozens of cases, English and American, cited in Law Lib., vol. xl., in discussing *Fletcher vs. Ashburner,*and *Ackroyd vs. Smithson.*So in *Gott vs. Cook,*7 Paige Rep., 521, and in all the other cases that can be found.

Thus Mr. Roper’s position, that a direction *to sell is essential*to a *conversion,*is supported by the fact that no case can be found of the conversion of realty into personalty, in which a sale had not been ordered.

And no sale was ordered in this case.

2. But says the learned Chancellor: “The same principle is applicable as was declared in *Perry vs. Logan.”*Apply the rule laid down in this case, and it will not operate against appellant.

The Chancellor, in delivering the opinion of the Court of Appeals, says:

“ Whenever it is apparent, from the words of the will, that the testator meant that his real estate, as such, should not pass into the possession of the objects of his testamentary bounty, but that his real estate should be converted into money, and as money, that it should come to those for whom he designs the benefaction, in equity, it will be regarded as a bequest of personal property. Under such circumstances, it will be treated in all respects as if the conversion had been made by the testator in his lifetime.”

This, by no means, indicates that the conversion is to be effected otherwise than by a sale. But applying the rule:

Did testator, in this case, mean “ that his real estate, as such, should not pass into the possession of the object of his testamentary bounty ?” It is the land he gives, *not*the pro*546ceeds of it. “I will and bequeath to my son, Eldred Spell, all my lands on the Round 0, known, &c., to be delivered to him whenever he shall come of age, to be valued by three disinterested persons, and to be received by him at said valuation, as so much of his share of my estate, &c.” The land is given; the land is to be delivered; the land is to be received.

What indicates that it is not to be received as land ? It is supposed its being directed to be valued, and to be received “ as so much of his (the son’s) share of my (testator’s) estate.” But the valuation was only for the purpose of ascertaining what value in negroes the daughter should receive. And though to be received as so much of testator’s estate, it was not to be received as so much money of testator’s estate, but as *land worth so*much money.

When land is valued by commissioners in partition, and allotted to an heir, it is not allotted to him as so much money of estate of him through whom he claims, but as *land worth*so much money. The valuation in partition and in this case are, in principle and effect, identical. Is the land received by ■the heir personal property ?

3. Besides, “ Courts of Equity, in general, will not interfere to change the quality of the property, as the testator has deft it, unless there is some *dear*act, or intention, by which he has *unequivocally*fixed upon it throughout a definite character, either as money or as land,” “ and to establish a conversion, the will must direct it,” out and out, “for all purposes, not merely those of the devisees.” Jarman on Wills, vol. i., 523, note 1, and numerous authorities there cited; Spence Eq. Ju. Ct. Ch., vol. ii., 256. Even a direction that testator wished the land to be sold, does not necessarily effect .a conversion. *Cook vs. Dangerfield,*2 Atk., 567.

4. Suppose there was a conversion. It was not “ out and •out,” but, as circuit decree says, for a specific purpose only, “to ascertain the value and fix the equality between them.”

Where a conversion is ordered for a specific purpose, and *547the purpose fails, there is no conversion. *Jlckroyd vs. Smithson,*in which Sir William Scott changed the mind of Lord Thurlow, and reviewed all the authorities. Fonb. Eq., vol. 2, 118, n. *a.*It appears from the facts, that there are no negroes left, after paying debts, to give. The specific purpose for the valuation or conversion then has failed, and so the conversion fails. *Croft vs. Slee,*4 Yes., 64. A conversion, for the sake of convenience, fails, if it should happen that the conversion is not necessary. Spence’s Eq. Ju. Ct. Ch., 262, marg. Next of kin cannot call for 'a conversion, merely that they may take proceeds as personal estate. When the purpose fails, said Lord Eldon, the intention fails, and the Court regards testator as not having directed the conversion. *Ripley vs. Waterworth,*7 Ves., 435; *Hill vs. Cock,*1 Ves. and Bearnes; Spence Eq. Ju. Ct. Ch., 234, marg.; *Chitty vs. Parker,*2 Ves., 271, marg.

5. Again, the realty “cannot be appropriated towards the payment of the debts,” “until all the personalty is exhausted.” Because every devise of land, (when this will was made,) or of the value of land, is specific. *Forrester vs. Leigh,*Ambler, 173 ; *Warley vs. Warley,*Bail. Eq., 409; Rop. Leg., vol. 1, 200, marg. The bequest to the daughter is not specific. *Wig fall vs. Wigfall,*3 DeS., 47; 1 Rop. Leg., 190; *Godard vs. Wagner,*2 Strob. Eq., 1 ; *Pell vs. Ball,*Spear Eq., 84; *Davis vs. Cain,*1 Iredell Eq., 304.

*Cam,*contra.

The opinion of the Court was delivered by

Wardlaw, J.

Courts of Equity, in promotion of right, sometimes consider as done that which should have been done. On this principle, latid directed by a testator to be. sold and turned into money, is considered as personalty before an actual sale. *Fletcher vs. Ashburner,*1 Br. C. C., 497 ; W. and T. L. C., 546 ; *North vs. Valk,*Dud. Eq., 212. Equitable conversion of realty into personalty is effected in strictness only where a sale of the land is ordered, and dis*548position of the proceeds is made; but if the intention to dispose of the subject as personalty can be ascertained from the face of the will, it may not be indispensable that a sale should be explicitly directed as a means of conversion. Chancellor Dargan says, with sufficient precision, in *Perry vs.*Logan, 5 Rich., *202,*“ whenever it is apparent, from the words of the will that the testator meant that his real estate, in that form, should not pass into the possession of the objects of his testamentary bounty, but should be converted into money, and as money, come to those for whom he designs the benefaction, this will be considered in equity as a bequest of personalty. Under such circumstances, it will be treated, in all respects, as if the conversion had been made by the testator in his lifetime.” So, too, cases might be within the principle of conversion as to some incidents, where no alteration of the form of the estate was contemplated. Thus, if a testator should give his land to his son, and his slaves to his daughter, and express his intention that the land and slaves should contribute to the payment of his debts, ratably to their respective values, his will would be the law between his two children, and the devisee could claim no exoneration from liability for debts. The same end might be effected by any form of words which would sufficiently exhibit testator’s intention to put the legatees on terms of complete equality, but no equivocal expression of intention can supersede the rules of law in this matter, and much less can the rules be deflected in operation by the seeming hardship of their result as to a particular legatee.

The law of this State as to the relative liability for the debts of a testator of his real and personal estate, is nearly identical with that of England, where a testator there has charged his whole estate with his debts. The statute of Geo. II, c. 7, sec, 4, *2*Stat., 571, abolishes here the distinction between real and personal estates in the payment of debts, so far as the rights of creditors are concerned, but as. between a devisee of realty and a legatee of personalty still leaves the *549personalty as the primary fund for the payment of debts. It is settled by the elaborate judgment in *Hull vs. Hull,*3 Rich. Eq., *65,*as to estate of which a testator was seized and possessed'at the time of making his will, aud as between the objects of his bounty, that a specific legacy of personalty must be exhausted in payment of debts before reSort can be had to land devised,' where no different rule is prescribed in the will. Every devise of land is specific, *(Broom vs. Monck,*10 Ves., 597, *Warley vs. Warley,*Bail., 397,) and without the aid of this principle the devise in the present instance is unquestionably specific, for it is separated and distinguished from all other lands by the terms of description': “All my lands on the Round 0., known as the Ash-hill plantation.” On the other hand, the legacy to Sarah Harriet, is not specific, (although she would not be helped if it were otherwise,) being merely the amount of the valué of the land, to be paid in negroes, without precise designation of the sum of money to which she should be entitled, or the number, names, ages or sex of the negroes to be used towards satisfaction of the legacy. Everything about the legacy is indefinite, and undistinguished from subjects of like kind.

The testator directs, “first, that all my (his) just debts be paid and discharged, and secondly, that the remainder of my (his) property be disposed of as follows;” and then proceeds to make his devise and bequests. And it is argued that this charge of his debts oil his whole estate serves to manifest his purpose to put his real and personal property in the same category, as a common and equal fund for satisfaction of his liabilities. It is naked conjecture, not founded on any fair construction of the terms and provisions of the will, that the intention of testator would be defeated by enforcing the rule of law as to the prior liability for his debts of his slaves and money. There is no intimation in the will that the testator was ignorant or mistaken as to the legal effect of his dispositions, nor of his intent or wish that there should be any departure from the usual course in the administration of his *550assets. Every one is presumed to know the law ; and this testator must be presumed to knowthat if he forbore to make a different direction, as he had a plain right to make or forbear to make, his personalty must be applied to his debts before his lands could be used for this end. If, in fact, he knew the law, then he designed the consequences of his dispositions; and we are not authorized to conjecture, against the legal presumption of skill, and in the lack of any contrary manifestation from the context, that there has been disappointment of his purpose.

The direction of the testator that his debts be first paid, and that his devise and bequests shall operate on the rest of his estate not consumed in such payment, is merely the superfluous expression of the inevitable conclusion or implication of the law. -.It is mere surplusage, not modifying to any extent the injunction of law. It is simply announcing in words the desire of the testator to fulfil his lawful duty to be just before he undertakes to be generous. In our last case on this point, *Lloyd vs. Lloyd,*10 Rich., 469, the testator directed “that all his just and lawful debts, and .all lawful charges against his estate be fully paid,” and then devised and bequeathed “ all the rest and residue of his property, real aud personal” — the words in Spell’s will are not quite so strong— and it was held that the charge of debts was superfluous, and inoperative to disturb the prior liability of personalty becjueathed generally, even to real estate acquired after making the will, and left to descend. *Lloyd vs. Lloyd*was decided on the authority of *Henry vs.*Graham, 9 Rich., 100 where the words of the will, in this respect, were, “ I direct all my just debts to be paid.” The same view was taken in *Brown vs. James, 3*Strob., *24,*as to the direction that just debts be paid. In that case the doctrine on this point is well put interrogatively. Does there appear, from the whole testamentary disposition taken together, an intention on the part of testator, so expressed as to convince a judicial mind, that it was meant not merely to charge the estate secondarily *551liable, but so to charge it as to exempt the estate primarily liable in whole or in part? No such intention to exonerate the personalty can be detected in this will. The land specifically devised to the son, and to be delivered to him whenever he should become of age, is directed to be valued ; but that valuation is ordered, without any expression of desire that the land should be changed in character, or that it should be taken subject to any abnormal liability for debts ; and, indeed, valuation is directed merely to ascertain the amount of the bequest to the daughter, without changing its rank. It is very probable that the testator made the mistake, so common with men in debt, of over-estimating the net value of his estate, for we find him giving to possible children legacies equal in value to that of the daughter, and providing that his Avife should enjoy for life *“*the remainder,” that is, residue of his personal property; but we cannot be sure, from his words, that if he had been premonished fully of the state of his affairs that would exist after his death, and instructed actually, as is always presumed in law, of the order of liability by law of the several portions of his estate for satisfaction of his debts, he would have changed his dispositions m any respect. We are not at liberty to conjecture, on any fanciful notions of equality and equity, that he did not intend to do that which the laws of many countries (thus exhibiting a very common sentiment of mankind) would have required him to do, namely, give superiority to his first-born of the male gender in relation to that kind of estate more immediately connected with duty to the State and the pride and aggrandizement of families. Suppose the land had been taken from the son by title paramount, it would hardly be pretended that the son could obtain contribution from his sister, on this notion of intended equality. No sentiment can be more general among men than the desire to provide for the comfortable sustenance of their surviving and bereaved consorts in life; yet Ave could not conclude, in deference to this sentiment, that because the testator gave an anticipated remainder of personalty to his *552wife and left her without other provision, she has a valid claim on the other legatees for contribution from their legacies for her maintenance. Her dower is independent of the will, but in the event she takes nothing by gift of the testator. It would be utterly unsafe, nay, despotic, to determine judicially that a testator intended whatever the Judge may think he might to intend. Then the fact that this testator, after a charge for debts, bestowed on his legatees the remainder or residue of his estate, is supposed to demonstrate his intention of equality among them as to burdens and benefits. Similar expressions were adjudged in *Lloyd vs. Lloyd,*to have no such effect, and correctly so adjudged. The testator here chose to put the implication of law in the form of an express direction; yet it cannot be inferred logically that he intended anything more than the implication of law. He used the term remainder, because he knew that his testamentary gifts could have no operation on his estate, except as to the remainder left after the payment of his debts; but this does not manifest any further independent and disconnected intention on his part to derange the rank of the things given in paying debts. With all proper respect for the opinions of others, it seems to me leaping in the dark to a conclusion, to affirm that this testator meant his land devised to pay his debts before his personalty was exhausted.

The decretal orders of the Chancellor are not appealed from, and seem to be unobjectionable. We adjudge that the doctrine of the circuit decree that the land is liable for the debts of testator before the personalty be exhausted, whether this be founded on the principle of equitable conversion or any provision in the will, cannot be maintained, and must be reversed.

And it is ordered that the decree be reformed accordingly.

Johnstone, J., concurred.

O’Neall, C. J.,

dissenting. I concur in Chancellor Dun-kin’s decree.

It is plain to my mind that the testator intended perfect *553equality among his children. His will plainly contemplates the payment of his debts out of the whole of his estate, real as well as personal. It directs the payment of all his debts, and provides that “the remainder of my property be disposed of as follows;” the devise and bequest follow this provision.

This, it seems to me, was equivalent to a devise, charging the whole of his estate with the payment of his debts, in the first instance, and then directing that the devise aud bequest should have effect.

Saddling the debts upon the personal estate first, has the effect to leave the daughter nearly penniless, and to confer upon the son a valuable real estate.

Such injustice ought never to be allowed unless some rule of law forces it upon the Court. None such exists. I am, therefore, for affirming the Chancellor’s decree. ,

*Decree*reformed.