Lloyd v. Hart

Gibson, C. J. — The present is not a case which depends on an arbitrary exercise of will by the party who made the conversion, or upon an election to reconvert the property by the party for whom it was made; but it is one of those cases of conversion by persons in auter droit, which are treated of by Leigh & Dalzell, in the seventh chapter of their disquisition. Even under the head to which it belongs, no analogy applicable to it can be drawn from conversion by assignees in bankruptcy, or from conversion by guardians ; or even from the conversion of land into money by the committee of a lunatic in England, for the effect of it there is regulated by statutes. , The conversion of a lunatic’s personal estate into real, seldom calls for a chancellor’s interference with its legal consequences, because it is the principal, if not the only, duty of the committee to provide for the lunatic’s personal comfort and interest, without regarding the ulterior and conflicting interests of those who may be entitled to the succession; a respect for which, it is said, might divert the attention of the committee from its proper object. It would be the interest of the next of kin to have the lunatic put on the smallestpossible allowance out of the personal estate and the profits of the land, while it would be the interest of the heir to ha ve as much of it as possible expended in improvements and repairs; and by attempting to do justice between these eventual interests, the present interest of the lunatic, who is entitled to the produce of the whole estate, in the way most beneficial to himself, might be prejudiced. Besides, it is said, if those interests were respected, there would be a running account between the personal and the real estate which it would be almost impossible to adjust on any equitable principle whatever. For these reasons they are for the most part put out of view, and the property is allowed by [478] the chancellor to retain the legal character stamped on it by the committee. But the principle of non-intervention does not universally hold, for a wanton conversion to favour the heir or the next of kin will be undone, and the delinquent committee perhaps punished for a breach of his trust; but, it is said, there is no equity on any narrower ground. A committee is a bailiff whose power is limited to the mere care of the estate under the direction of the court; and he had no power to sell the land for payment of debts charged on it, till it was given to him by the 43 Geo. 3, c. 75, which, however, expressly directed that the surplus remaining after payment, should be applied as the estate would have been applied had the statute not been enacted, and consequently as if the land had not been converted. The same conservative provision is found in the 11 Geo. 3, c. 20, the 11 Geo. 4, and the 1 Will. 4, c. 65; so that it seems to be a principle of policy indicated by acts of legislation in England, to protect the lunatic’s land from unnecessary conversion ; and in this respect there would seem to be a difference there between real and personal estate. Our own statute, empowering the committee to sell the land for maintenance and payment of debts, was evidently not copied from the English one, or suggested by it; and it follows not that the omission of the English provision in it was purposely intended to mark a departure from the English policy. The case before us, therefore, is unaffected by precedent; and we are left at large to interpret our own statute by the principles of reason and justice. Adverting, then, to what we may suppose would have been done had it been presented to the legislature for special provision, we cannot think that power to convert beyond the exigencies of the occasion would have been conferred, since, had it not been for those exigencies, the legislature would have conferred no power at all. The power was to be exercised, not for the sake of conversion merely, but for a purpose beyond it; and beyond the accomplishment of such a purpose it is not to be supported. This interpretation of our statute coincides with the interpretation put upon wills, directing lands to be sold for a special purpose, which raised a resulting trust, for the heir, of the unexpended surplus in Emblyn v. Freeman, Free, in Ch. 541; and Roper v. Radcliff, 10 Mod. 230; S. C., 9 Mod. 167, 181, on the ground that the divisor intended that his land should be no further converted than the end should require. In Hill v. Cock, 1 V. & B. 173, when the purpose of the conversion was disappointed, the whole produce of it was treated as land; and in Leigh & Dal. ch. 5, a multitude of cases to the same effect are collected. From these it appears that the equitable character of the property, when legally converted, depends on the will of the devisor, collected from the purpose to be answered by it; but [479] the committee had, in this instance, no will to exercise, or power to convert, as a devisor has, for motives of mere caprice, or for any motive at all not authorized by the statute. The sale was for maintenance of the lunatic and payment of his debts ; consequently what remained when that was accomplished retained the impress of real estate. Judgment reversed, and entered for defendant.