Williams v. Hassell

Reade, J. 1. Suppose the testator had taken a title to the iand in his lifetime, but left the price unpaid as a debt against his estate; and the executor had paid the debt out of the personal estate, which is primarily the fund for paying debts; that would not have changed the land into personalty. It is the same in this case, where the testator had only contracted for the title. There was error in the ruling of his Honor upon this point. 2. His Honor was right in ruling that the children of the testator took only a life estate in the land, (personalty as he considered it,) but he was in error in holding that the children of the children take the remainder. The remainder is “ to the living issue of such child absolutely and forever.” So that they are not the children of the testator’s son Henry that take Henry’s share in remainder ; but only such of his children as may be living at Henry’s death. And so of the rest. 3. It will be seen, therefore, that the persons who are to take the remainders are not ascertained. They may be the same who are now in existence, or they may bo added to by subsequent births, or diminished by deaths. As the persons who may be entitled to the remainder are not ascertained, so they cannot be represented ; and as their numbers and conditions are not known, so the propriety of a sale of the lands cannot be determined. It was error to order a sale of the land. This will be certified. Per Cueiam. Judgment accordingly.