case crabtree versus bramble march see in re Gordon Ch d potter v Dudeney t lt  b b by article previous to his marriage covenant to lie out pound in the  purchase of land and to settle the same on himself for life and after his  decease to mary his intend wife for life and after both their deceases to  trustee to sell and the money arise from such sale to be divide among the  child of the marriage to son at daughter at or marriage provide no sale be  make till one of the share shall become Payable the purchase be make accord  afterward Elizabeth the only survive child die unmarried but have attain the  age of the absolute proprietor of these estate Elizabeth have take they as  land in her lifetime and do act to show she intend they shall be consider as  real estate they must be hold as such and go to the heir where a person be  absolute entitle to have land agree to be purchase or money to arise from the  sale of land he may elect to have either the one or the other as to what shall  amount to a election in those case see Chichester v Bickerstaff vern Lingen v  Sowray p W Edward v countess of Warwick p W bow v earl of Shrewsbury bro par  can and Edward Bradish v gee Amb Hewit v wright bro Charles Rep Pultney v earl  of Darlington ibidem so where money be direct to be lie out in the purchase of  land to be settle on one in tail remainder over in this case the tenant in  tail and remainder man may elect that it shall be take as money and so be  discharge of the entail Trafford v boehm ante r atk but if the tenant in tail  be a feme covert then it be necessary to apply to the court of chancery Oldham  v Hugh atk ante in what case equity consider money direct to be lie out in the  purchase of land as land vide Guidot v Guidot ante atk note upon a marriage  between Richard bramble and mary timbrel by article previous thereto date the  that of October in consideration of one thousand pound portion Richard bramble  covenant with trustee before Michaelmas next ensue to lie out two thousand  pound upon the purchase of land to that value and to settle the same upon  trust for Richard bramble for life and after his decease to mary for life and  after both their deceases to the use of trustee and their heir upon trust that  the estate so to be purchase after the death of Richard and mary be sell and  the money arise by such sale divide among all the child of the marriage share  and share alike to the son at and to the daughter at or marriage provide no  sale be make till one of the share shall become Payable and if all the child  shall die before any portion shall become Payable then the estate shall not be  sell but after the decease of such child the trustee and their heir shall  stand seize of the same in trust for Richard and mary and the survivor and the  heir executor administrator and assign of such survivor for ever the marriage  take effect and eleven hundred and fifty pound be lie out soon after in the  purchase of land in the island of Thorney in Sussex and settle to the use in  the article atkins Richard by his will direct his executor to purchase land of  the full value he be oblige to purchase on his marriage and settle the same on  such person and for such use as he ought to have do it be his intent that the  marriageagreement shall be perform Richard die the that of August and a  further purchase be make of a farm call raimonds in Sussex in trust for the  use in the marriagearticle mary the wife of Richard on the death of her  husband enter upon both the estate and enjoy they till her death which happen  the that of November Elizabeth the only survive daughter by Richard die  unmarried and intestate the that of December and the plaintiff her sister of  the half blood and next of kin have take out administration and thereby become  entitle to the intestate personal estate and insist that the trust estate by  virtue of the marriagearticle ought to be consider in a court of equity as  person l estate of Elizabeth she have attain year in the lifetime of her  mother and that the estate be never convey to Elizabeth nor do she ever apply  to the trustee for any conveyance nor do she do any act whereby she consider  the estate as real and therefore the plaintiff have bring her bill that the  trust estate may be sell and the money be pay to her and likewise the rend in  arrear since Elizabeth death the defendant Richard bramble insist that as the  trust estate be not sell by the trustee and turn into money in the life of  Elizabeth and as Elizabeth do receive the rend of the estate from the death of  her mother to her own death the same ought to be consider as real and not as  personal estate and therefore on the death of Elizabeth insist the estate  descend to he as her heir on the part of the father the defendant grandfather  be the only brother of Richard the father of Elizabeth it be prove in the  cause that Elizabeth in let raimonds farm to one Lindop upon lease for the  term of year and that he agree to pay the yearly rend of pound to Elizabeth  her heir and assign for this farm and he do from time to time pay Elizabeth  accord as the same become due and before the expiration of the atkins er p  first term on the that of December Lindop take a further lease of the farm for  year at the same rend and with the usual covenant both on the part of the  lessor and the lessee and pay Elizabeth the rend so long as she live Mr  solicitor general for the plaintiff atkins the question be whether this be to  be consider as land or money if the latter then it go to the plaintiff the  sister of the half blood to Elizabeth bramble independent of any election  Elizabeth may have make clear it be money and if land be direct by  marriagearticle to be turn into money in this court it be to be consider as  personal estate in the case of Guidot versus Guidot ante atk S c after Trinity  term a sum of money by article previous to the marriage be agree to be lie out  in the purchase of land in great Britain or in some church college or other  renewable lease and to be settle to particular use the last limitation to the  husband and his heir the money be not invest in the purchase of any freehold  or leasehold land but remain in money to the death of the husband and as he  have make no election Lord chancellor hold that at the time of his death it  stand in equity as it do in the article either to be lie out in freehold or  leasehold and therefore this court will call it one or the other accord to the  rule in equity that what be agree to be do must be consider as do and declare  that the money ought to be lie out in the purchase of land of inheritance or  in church c in the present case Elizabeth make no election and therefore at  her death it stand in equity as it do in the article and as it be there direct  to be turn into personal estate must be consider as such he then cite the case  of Lingen versus Sowray p wms where by article before marriage the husband  agree to add pound to the wife portion of pound and the security for this  money be agree to be invest in land and the last remainder be to the husband  and his heir pound of the money be call in by the husband and afterward place  out by he on a different trust and declare to be to he his executor and  administrator this Lord Harcourt hold to be a alteration of the nature of it  and that it shall be take to be personal estate since the husband declare the  trust to his executor seem tantamount with his have declare that it shall not  go to his heir here by the direction of the husband Richard bramble after his  and his wife death the trustee be to turn it into money to be divide among the  child of the marriage and therefore what be agree to be do must be consider as  do atkins the second question be whether Elizabeth the only survive child of  the marriage do any act to declare her election it shall continue land it have  be insist by the defendant in the answer that she have do it by let raimonds  farm upon two different lease one for and the other for year and thereby  reserve a rackrent of pound a year to herself her heir and assign there be no  colour to say she have make a election by this mean and very extraordinary she  shall make a lease while the mother be live who do not appear to have join but  suppose it to be a lease make after the mother death here be no fine take the  value in no respect lessen nor do the reservation to her heir and assign at  all hinder the sale for if she have sell it the purchaser be her assignee and  take as such and therefore as she have do nothing one way or the other and  leave it without any act to declare her election it will not alter the nature  of it but continue money accord to the authority cite and must go to the  plaintiff Mr Wilbraham of the same side the husband who have a absolute power  over the pound order it to be invest in land to the use of himself for life  and to the wife for life and then direct on the death of the survivor of  husband and wife that it shall be notwithstanding the estate in land for their  life turn into money to be divide among the child if the article be to be  carry into execution accord to the letter of they then clear the land ought to  be sell for wherever it be agree to be sell or direct to be sell this court  will look upon it as money the father and mother may apprehend it will be  inconvenient to let child be tenant in common of land and as here be a child  of a former venture it may be do with a view of give her a chance of come in  for a share in doughty versus bull p wms the plaintiff father devise land to  trustee in fee in trust to apply the profit till sale for the benefit of all  his four atkins er p child and the survivor and survivor of they equal and on  further trust that as soon as the trustee shall see necessary for the benefit  of the child they it shall sell the premise and apply the money for the  benefit of the four child equal to be pay at or marriage a the old of the four  child attain and marry and atkins die without issue intestate leave a wife the  court decree the land be in all event devise to be sell though the time for  sale be leave to the executor be personal estate and a s widow must have a  moiety of a s share so that it be determine to be personal estate because it  be so declare by the person who have the original power the question be  whether anything have be do by Elizabeth bramble either in the lifetime of the  mother or in her own to show b er election that it shall be real estate the  grant the lease in the mother lifetime show no more than she intend to make  the best of the land she enjoy the land for two year after her mother death  and if she have intend to sell they can not have do more for the advantage of  sell they than let they out on a rackrent and therefore this fact be of no  avail to show her intention to make it real estate and if so then the article  ought to be specifical perform and the court will not be averse that it shall  fall into the hand of the plaintiff a sister of the halfblood rather than to  the defendant a remote relation who happen to be heir at law Mr  attorneygeneral counsel for the defendant Elizabeth in make a lease for year  and in for year of this farm and reserve a rend of pound a year Payable to her  her heir and assign a covenant on the part of tenant to pay it to her her heir  and assign a proviso if the rend shall be in arrear that she may reenter and  hold to her her heir and assign and covenant likewise on the part of herself  her heir and assign to perform the several intent and purpose of the lease the  general question be whether this be or be not to be consider as personal  estate there be no dispute but Elizabeth have the equitable absolute property  but say the plaintiff though she enjoy it as a real estate yet as there be  nothing do to show her intention or inclination it shall be consider as real  estate it ought to go accord to the direction of the article it be not natural  to suppose the party to the article shall mean to convert it into personal  estate where it be not at all necessary or of any advantage to the child it  shall be convert into money atkins the most material question be whether it do  not appear on all the circumstance of the case it be her intention to consider  this as her real estate and if so the court will not alter that mere because  the original trust be to turn it into money and mere too to make it from the  heir at law act as well as word will declare the intention her give receipt  for rend as the rend of real estate and as she have think proper to receive it  from a tenant of real estate she do not consequent receive it as money but  consider it as her real estate the plaintiff claim it mere as her personal  representative and not under the article it be object she have not apply to  the trustee for possession of the land but what she have do be strong for she  have in opposition to they take the possession Mr Noel of the same side this  court do not consider absolute money to be lie out in land as land or land to  be turn into money as money unless it be consistent with the purpose for which  the land be intend to be sell or on the other band for which the money be to  be invest in land as to the article themselves direct first to be lie out in  land but for the ease of their child the contract party have it in view to  turn it into money provide no sale be make till one of the share shall become  Payable therefore if that case do not happen of its be necessary to turn the  estate into money in order to pay a share that be become due then they do not  intend it shall be consider as personal estate in the case of Chaloner versus  butcher march at the roll the dispute be between a representative of personal  estate and a heir at law money there on mortgage agree to be lie out in land  to the husband for life to the wife for life and if no issue the absolute  disposal in he be after the wife death without issue declare c atkins er p it  shall not be lie out in land the court hold if the question concern the right  of a three person the declaration of the husband shall not be read but as it  be between his personal and real representative they shall be read and  determine it upon the declaration only atkins there be no pretence in the  present case that Elizabeth ever make any declaration it shall be turn into  money and in the case of Edward and the countess of Warwick wms Lord  Macclesfield say in all case where it be a measure cast betwixt a executor and  a heir the latter shall in equity have the preference the enjoyment of  Elizabeth who have a power over it in that specie consider it as land be in  itself a evidence of her intention that it shall not be turn into money it  will be very extraordinary to say that the heir shall be the object in respect  to bind he by the covenant in the lease to make good the purpose and intent  thereof and yet he shall not be the object as to any benefit under they but  shall go to her personal representative all the circumstance put together be  strong to show the party who have a power mean it shall continue as land and  though the defendant have be call a distant relation he can be consider in  that light when he be direct in the male line of Richard the party to the  article as he be a grandson of his brother Lord chancellor this be a question  between a personal representative and a heir at law concern a property which  at present be exist as real estate it have be contend on the side of the  plaintiff that this which be now real estate and stand in trustee name be to  change its nature and to be consider as personal estate the general question  be whether it be to be consider as land or money and this will depend on two  question first whether on the nature of the trust in the article independent  of any election by Elizabeth it ought to be consider as land or money second  whether Elizabeth have show any intention it shall be keep as real estate to  be sure it can be say to be a clear case but on the face of the article one of  the weak in which a personal representative can come into this court to turn  it into money the trust under the article be that the estate so to be purchase  after the death of Richard and mary be sell and the money arise by such sale  divide among all the atkins child of the marriage share and share alike to the  son at twentyone and to the daughter at twentyone or marriage provide no sale  be make till one of the share become Payable it be true observe that the  contract party suppose there may be more child than one of this marriage and  consequent more convenient if several to take their portion as money for the  provision be small it may be want to set they up in trade c nothing be say of  a sole child but only that it shall be divide among the child and by turn it  into money may be do with more ease but to have direct a compulsory sale upon  one child will have be a pretty frivolous direction of a parent the proviso be  not till the money arise by sale shall become Payable but until one of the  share become Payable which be still proceed as if the whole be not to go to  one and the very last clause be if all the child shall die before any portion  shall become Payable then the estate shall not be sell but after the decease  of such child the trustee and their heir shall stand seize of the same in  trust for Richard and mary and the survivor and the heir executor  administrator and assign of such survivor for ever so that take the  construction of the declaration of trust together the contract party seem to  have have in view the case of several child but the observation I have make be  not decisive because they do not absolute determine there shall be no sale if  one child though they have weight so far that the case in which they direct a  sale have not happen the second question be as to the election of Elizabeth  the daughter whether there be any evidence in the case of her elect to keep  this as land it must be allow equity follow the contract of party in order to  preserve their intent by carry it into execution and depend on this principle  that what have be agree to be do for valuable consideration be consider to be  do and hold in every atkins er p case except in dower and therefore where  money be to be lie out in land there the court will make it have the property  of land the same rule of land to be convert into money No election can  determine the question as to those claim under the trust but as to those only  who claim as volunteer atkins the father Richard bramble die in the mother in  and be reduce to one child must depend entire on her act she do not die till  and therefore capable of judge as she be turn of she on the mother death enter  on the land and from that time continue in possession for two year receive the  rend make no application to trustee to sell nor bring a bill against they to  sell though she have a right to apply to they to sell and as beneficiary and  trust may have contract for sell and bind the trustee but there be still  something more in the case she make a lease in of the land reserve a rend to  her and her heir and likewise in with the same reservation this have be insist  to be a further act to show she approve of its continue as land it be object  the lease be make in the lifetime of the mother who have her life in the  estate but the question be not whether she have a right to lease it out but  whether this do not amount to a approbation of it continue as real estate have  she any right to make a election at twentyone after the death of the father as  she be the only child of the marriage I be of opinion that she have a right to  elect even during the mother life and that she may have come into this court  to compel the trustee to sell this reversion for her benefit even in the  mother lifetime and though she have this right yet instead of do this she make  lease of the land reserve rend to her her heir and assign can there be a  strong evidence to show her intention to continue it as real estate than that  he have bind her heir to make good this lease it have be say the trustee in  point of law have a right to receive the rend and to be sure they have and yet  she enter against their possession and grant lease of the land and it be a  very material observation of the defendant counsel with regard to the heir be  liable to a action on the part of the lessee the case of Lingen versus Sowray  p W S c in one part of it be rather for though defendant for the article say  Lord Harcourt have in equity change the nature of the money and turn it as it  be into land and therefore as to so much of the pound as be subsist upon the  security on which it be original place or on any other security where no new  trust have be declare it ought to be consider as real estate this court if one  may use the expression in a court of justice rather lean to a heir at law  atkins but what use do Lord Harcourt make of the word executor and  administrator in that case why say be as to the pound of the pound which be  call in by the husband and afterward place out on security on a different  trust that shall be take to be personal estate for place it out thus I take to  be a alteration of the nature of it since the husband declare the trust to his  executor and administrator seem tantamount with his have declare that it shall  not go to his heir see how far that go in the present case the husband there  can not do otherwise than declare the trust to his executor and administrator  and yet the court hold that it shall not go to his heir here Elizabeth reserve  to her her heir and assign and say by the plaintiff counsel she can not do  otherwise and very true she can not and yet though she can not reserve  otherwise there be equal reason in the present case to hold it as her intent  it shall go to her heir as in Lingen versus Sowray to the executor and this  will be sufficient to determine the question as between the representative of  the personal estate and the heir and it be true say by Lord Macclesfield it  have be the rule of the court to give the turn of the scale in favour of the  heir and therefore as I find it land and the absolute proprietor take it as  land and do act to show she intend it shall be consider as real estate I shall  consider it as such and therefore the bill must be dismiss but without cost  atkins er p