#### C. A. Watson, by next friend, *vs.*J. W. Child and T. Thomson, Executors, and others.

Testator, after the date of Ms will, acquired lands in Florida. In the 'absence of all proof as to the law of Florida, *held,*that such lands passed to the heir and not to the devisee.

Testator after the date of his will contracted to purchase lands in Florida, and after his death his executors paid a balance due of the purchase money and took titles in their own names: *Held,*that they were trustees for the heir and not for the legatees and devisees.

Lands contracted to be purchased after the date of the will go to the heir ; and the purchase money like any other debt must be paid by the executor from the personal estate.

BEFORE DUNKIN', OH., AT ABBEYILLE, JUNE, 1856.

Dunkin, Ch. The plaintiff is stated in the pleadings to be an infant about the age of nine years. She is the grandchild and only lineal descendant of the testator, John McLen-nan, being the child of his deceased daughter, Ann Watson, The plaintiff’s father is also dead. It appears that the testator •was born in Scotland, and emigrated to South Carolina about 1820. He resided in Abbeyille District until the early part of 1852, when he removed to Elorida, and there became domiciled. He died in the following year (1853) while on a visit to his friends in South Carolina. The will of the testator bears date 3d January, 1852, was executed in Abbeville District, South Carolina, and the testator describes himself of that District and State. By the first clause of the will, his estate, real and personal, is directed to be sold. A legacy of five hundred dollars is then given to the plaintiff, described as his “ Grand-daughter, Catharine Ann Watsonand after bequeathing a like sum to his father or mother, in Scotland, *130and one hundred dollars to his aunt, the rest and residue of his estate is bequeathed to his brothers and sisters in Scotland. At the time of his decease, the testator left some seventy slaves, valuable lands in the State of Elorida, and ohoses in action to a considerable amount. The will has been proved in solemn form in this State, but has never been subjected to any judicial inquiry in the State of Elorida. On 17th January, 1854, these proceedings were instituted in behalf of the plaintiff. In June, 1855, Chancellor Johnston pronounced a decree in favor of the defendants as to the personalty. But he directed the bill to “be retained so far as the land in Elorida is concerned,” and it was thereupon ordered that “ it be referred to the Commissioner of this Court to inquire and report whether the real estate, situate in Elorida as aforesaid, was acquired before or after the execution of the will aforesaid of John McLennan; that he also take evidence of the Elorida law, for the distribution of intestate real estate, and upon the subject of aliens taking by descent or devise, and that he have leave to report any special matter.”

The Commissioner stated that, some months since, he had given notice to the Solicitors of both parties to furnish such evidence as would enable him to report under this decretal order; but that no reference had been held. It appeared also, that, on 9th January, 1856, an amended bill was filed on behalf of the plaintiff, alleging the belief of the plaintiff, that the Elorida lands were acquired after the execution of the will, and praying that the defendants might be required to adduce the title deeds &c. The answer of the defendants was filed on the next day. The plaintiff desired to gontinue the cause for the purpose of adducing evidence of the Elorida law, but this was successfully resisted by the defendants, who urged that the facts were sufficiently disclosed, and that, if the Elorida law would afford aid to the plaintiff, it should have been produced..

It is not disputed that, at the date of testator’s will, 3d *131"January, 1852, lie was seised of no real estate, except fifteen acres, part of the academy lot in Cambridge, for which, he had paid twenty dollars. He had sold out his lands in Abbeville to Gen. Gillam, in 1849.

During the following years, 1850 and 1851, he rented lands. Something is said in the answer of the executors, of the transactions of an agent of the testator in -Florida, in the fall of the latter year. But it may be sufficient to observe that no evidence whatever was adduced, either of an agency, or of any thing done by such agent. Of course, if any evidence, important to the issue, or inquiry directed by the Chancellor, as to such transaction, existed, it was the duty of the defendants to have adduced the evidence. It was not a matter affecting their conscience, or in which the statements of the answer, unsupported by proof, have any weight. At the period of the testator’s death, he was in possession of two tracts of land, or rather of one tract embracing two half sections, in Florida. One half section was held under a conveyance from Mordecai Myers to the testator, bearing date, 12th June, 1852, of which a copy is exhibited with the defendants’ answer. As to the other half section, the defendants say, “they found among the papers of the testator a bond for titles from one Matthew B. Hawkins.” It would have been more satisfactory, if the defendants had exhibited a copy of this bond, or if they were unable to do so, (which is not stated,) the date of the bond could have been set forth, and to whom it was payable; although, it may, perhaps, be very well inferred that it was payable to the testator, and as he did not go to Florida, until after the date of his will, that the bond from Hawkins was taken subsequent to that period.

From some difficulty about the title, no conveyance was made by Hawkins, until after the death of the testator; when in December, 1853, the balance of the purchase money was paid by the executors, and they received a conveyance from Hawkins to themselves as executors. According to this evi*132dence, the testator, at the date of his -will, 3d January, 1852, had no title, legal or equitable, to any part of Ms Florida lands. It is true there is'an intimation in the answer of the defendants that, by the Florida law, real estate acquired after the date of the will would pass under a general devise.- But of this, the Court can only remark, as of the statement as to some pre-existing contract for the purchase, that no evidence was offered by the defendants of the existence of any such law in the Florida Code. The provision, that real estate, acquired after the date of a will, shall not pass thereby, unless the will be republished, does not derive its origin from the Act of 1791. Such was the law of South Carolina before that enactment. See *Gogdell*vs. *Gogdell,*3 Dess. 346. Such, says Chancellor Kent, is the settled rule of the English Law, .4 Kent, 497. It is the law of every State in the Union, unless otherwise specially provided by Statute. The clause in the Act of 1791, applied to personal, as well as real estate, after acquired. When this was modified by the Act of 1808, the law stood as it had always been. But the position, upon which the defendants seemed chiefly to rely, and which was elaborately discussed at the hearing, is the ground last assumed in the answer. To wit: That “ as the will directs a *sale*of all the testator’s estate, the lands must be regarded as personalty and must pass to the legatees, whether acquired before or after the execution of the testator’s will.” Certainly in many cases, land articled or devised to be sold, is, in this Court, reputed as money. Story, Sec. 790. But when the reason of the primary rule is examined, it will be perceived that this principle of equitable conversion is inapplicable. Subsequently acquired lands do not pass under a will, because the *devise*is a species of conveyance. “ That,” says Mr. Justice Blackstone, “is the reason that the devise operates only upon such real estate, as was owned and seized of at the time of the making of the will.” 2 Blk. Com. 378. In *Brydges*vs. *Chandos,*2 Yes. Jr. 417, Lord Roslyn con-*133aiders “ wbat tbe law of England permits to be a disposition by will of land.” “ It is not,” says be, “ an indefinite disposition of all a man may be possessed of at bis death, as in tbe case of personal property. A disposition of land by will is no more than an appointment of' tbe person, wbo shall take tbe specific land, at tbe death of tbe person making it. It is so far testametary, that it is fluctuating, ambulatory, and does not take effect till after tbe death; but it is in nature of a conveyance, being an appointment of tbe specific estate,” &c. Tbe will does not operate upon any real estate of which tbe testator was not, at tbe time, entitled to dispose. A direction to sell would no more affect after acquired lands than an absolute devise of all bis real estate would vest in tbe devisee, a plantation which be subsequently purchased. In Sugden on Vendors, 179, tbe general doctrine upon another point is succinctly stated. “Estates, contracted for *after*tbe will, will not pass 'by it; nor will lands pass by tbe will, although conveyed to tbe purchaser subsequent to bis will to *pursuance of a contract prior to the*will, unless it was a valid binding contract.” (In tbe authorities cited, it is described as such a contract as would be enforced in a Court of Equity between tbe parties. *Bose*vs. *Oonyngham,*11 Ves. 550; 2 P. Wms. 629.) “But in these cases,” continues Mr. Sugden, “ tbe heir at law will be entitled to tbe estate for bis own benefit, and, if not paid for, tbe purchase money must be paid out of tbe personal estate of bis ancestor.” Again, “ If tbe executor complete tbe purchase, and take tbe conveyance in bis own name, be will be a trustee for tbe heir or devisee.”

Tbe Court has already remarked that there is no evidence in tbe case of *any*contract, anterior to tbe date of tbe will, 3d «.January, 1852, much less of any such obligatory contract as a Court of Equity would at that time have enforced by decree for specific performance between tbe parties. Tbe bond for titles, which tbe testator, subsequently took from Hawkins, *134constituted a binding contract of wbicb tbe beir, and not tbe devisee is entitled to tbe benefit, and sbe is also entitled to bave any balance of tbe purchase money paid out of tbe personal estate, like any other debt of tbe testator. When the defendants, after testator’s death, completed tbe purchase and took a conveyance in their own names, they must be taken to bold as trustees, for tbe beir at law.

If tbe result of tbe investigation bad been different, if it bad appeared that tbe Florida lands passed by tbe devise, then it might bave been important for tbe plaintiff) to prosecute tbe other branch of tbe inquiry, indicated by tbe decree of June, 1855. But, in tbe view now taken by tbe Court, tbe right of tbe plaintiff’ could only be resisted or modified by proof, on tbe part of tbe defendants, that tbe common law bad been so far altered by tbe laws of Florida, as to permit aliens to take lands by descent, and to prefer collaterals to lineal descendants. In tbe absence of any such proof, tbe plaintiff, admitted to be tbe lineal descendant of tbe testator, must be regarded as tbe only person entitled to tbe inheritance. Tbe Court is of opinion that tbe plaintiff is entitled to the possession of tbe title from Mordecai Myers to tbe testator, bearing date 12th June, 1852, and defendants axe declared to be trustees for tbe plaintiff, under tbe conveyance from Matthew B. Hawkins to themselves, dated 12th December, 1853, and it is ordered that tbe Commissioner take an account of tbe rents and profits of tbe premises, with leave to report any special matter.

It may be important to direct a sale of tbe premises, either by tbe defendants (in whom tbe legal title to a majority is vested) or in some other way. Leave is given to tbe parties to prepare and present such further order, as may be deemed expedient and proper, to carry this decree into effect.

Tbe defendants appealed and moved this Court to reverse tbe Circuit decree, and dismiss tbe complainant’s bill.

1. Because, it is respectfully submitted, tbe Chancellor *135erred in disregárding tbe statements of tbe answer responsive to tbe amended bill, asking a discovery in respect to tbe purchase of lands in Florida, by tbe testator, John McLennan, tbrougb bis agent, Child.

2. Because tbe complainant cannot take so much of tbe discovery sought, as benefits her, and disregard other portions of tbe same statement — which it was supposed was in evidence at tbe instance of the complainant herself and which if it bad been thought necessary, could have been proved by other testimony.

3. Because the lands in Florida were in.fact purchased, and acquired, by the testator, through his agent, before he left the State of South Carolina, and before he wrote his will, which had reference to, and was doubtless intended to cover these identical Florida lands.

4. Because the will of John McLennan directed his lands to be sold, and disposed of the proceeds as personal legacies. This Court will, therefore, consider the same as personal estate, and apply to it the rules applicable to such property.

5. Because, by the laws of Florida, a will takes effect at the death of the testator, and conveys all the real estate owned at that time, whether acquired before or after making the will. There being in this respect no distinction in that State Between real and personal estate.

6. Because, by the laws of Florida, aliens may take and hold either by descent or devise, and when they take by devise it is immaterial whether the land is acquired before or after making the will.

Failing in their motion to reverse the decree, then they moved for a new trial,

*136Because, from tbe view tbe Chancellor took of tbe amended answer of tbe defendants, there was not sufficient evidence before tbe Court to decide tbe case satisfactorily and according to tbe truth; tbe exact condition of tbe land purchased in Florida at tbe time of tbe testator’s death, being susceptible of full proof, which relying upon tbe answer, was not offered upon tbe trial.

McGowan, for appellants.

Wilson, contra.

*Per Quriam.*

This Court is of opinion that tbe decree should be affirmed, and tbe appeal dismissed; and it is so ordered.

Johnston, DUNKIN', Dargan, AND Wardlaw, CO., concurring.

*Appeal dismissed.*