by statute.1 Some controversies of little practical consequence, over the nature of bells, bell-ropes, and organs, are reported in the older books.2 And it might seem superfluous to say that a stove and pipe in a church are chattels, and not real estate; though furnaces might usually be treated as permanent fixtures. A bell once set up in the belfry of an old church, and afterwards transferred with its framework to the lot where a new church was being erected, and there remaining in regular use for about a year until the tower of the new edifice should be ready for its reception, is constructively held to be part of the realty. And an organ, though usually a chattel, may, when set into a special niche provided for the purpose of giving the church an architectural finish, become a permanent fixture.5 § 133. Character of Property as Real or Personal; Doctrine of Equitable Conversion. Finally, the character of property is frequently determined by the equitable doctrine of conversion. One of the maxims of the chancery courts is, that equity looks upon that as done which ought to be done. As a consequence of this maxim, money directed to be employed in the purchase of land or land directed to be turned into money is in general regarded as that species of property into which it is directed to be converted; either immediately, or at some future time, according to circumstances. Thus, a devise that the land of a testator should be sold, and the money paid over to an alien, has been carried into effect, although under the law an alien could not take real estate. This 1 See Mass. Gen. Sts. c. 30, § 38; 1 Washb. Real Prop. 9; Buck Eccl. Law, 146, &c. ; 3 Kent Com. 402; Church v. Wells, 24 Penn. St. 249; Hodges v. Green, 28 Vt. 358; Baptist Church v. Bigelow, 16 Wend. 28. 2 See 1 Burn Ecc. Law, tit. Church. 3 Congregational Society v. Stark, 34 Vt. 243. 4 Congregational Society v. Fleming, 11 Iowa, 533. See § 115. to the building are chattels. Ib. As to the rights of pew-owners in this country, see Buck Eccl. Law, 146 et seq.; Newbury v. Dow, 3 Allen, 369; Jackson v. Rounsville, 5 Met. 127 ; Presbyterian Church v. Andruss, 1 Zabr. 325; Kincaid's Appeal, 66 Penn. St. 411. See Story Eq. Jur. § 790; Fletcher v. Ashburner, 1 Lead. Cas. Eq. 2d ed. 659 et seq.; Craig v. Leslie, 3 Wheat. 577; Houghton v. Hapgood, 13 Pick, 154. 7 Craig v. Leslie, 3 Wheat. 577. doctrine of conversion bears especially upon the descent and distribution of property in cases where one would take if the property were real, and another if it were personal. The persons entitled to the property whose conversion is directed are entitled to enforce the conversion, either actually or virtually; but not a stranger. A like rule sometimes applies in disposing of the surplus produce of real estate sold for certain purposes. For where real estate is directed to be sold under a will, to carry out specified objects, so much as remains of the real estate, or its produce, after making a necessary sale for such objects, goes as real or personal property according to the testator's intention.2 CHAPTER VII. PERSONAL PROPERTY IN EXPECTANCY. § 134. Time of Enjoyment of Personal Property to be considered. — We have considered in the foregoing chapters the various kinds of personal property. We may now, following 1 See Fletcher v. Ashburner, supra; 2 Spence Eq. 268, 269; Story Eq. Jur. § 790. 2 Ackroyd v. Smithson, 1 Lead. Cas. Eq. 2d ed. 690 et seq.; Smith Manual Equity, 9th Eng. ed. 161. And accordingly, in a late case, where A. by will, after sundry legacies, gave all the residue of her estate, real and personal, to C., and empowered her executor to sell her real estate; and, the personal estate being insufficient to pay her debts and legacies, he did so; and upon a final adjustment of his accounts a surplus in money remained; it was held that this surplus was to be treated as real and not as personal property. C. had died a few days after A.; so this surplus went to C.'s heirs, and not to his administrator. Cook v. Cook, 5 C. E. Green (N. J.), 275. Real estate which has been added to partnership stock is often treated as though converted into personal property. See Pars. Partn. 369 et seq. Amos and Ferard's work on Fixtures is well known. A more recent text-book of good repute on this subject is M. D. Ewell's. But while the reader may find elsewhere more authorities cited upon this perplexing subject, it is believed that the leading principles announced are sufficiently stated and vouched for in the foregoing chapter. All such controversies involve mixed questions of law and fact; and hence multiplied citations only lead to mental confusion. the example of the common-law writers on real estate, treat of personal property with reference to the time of enjoyment. § 135. General Doctrine of Interests; Immediate or Expectant. Blackstone lays it down that estates, with respect to the time of enjoyment, are either in immediate possession, or in expectancy; that estates in expectancy are created at the same time and are parcel of the same estates as those upon which they are expectant; and that expectant estates are to be subdivided, first, into the remainder, which is an estate limited to take effect and be enjoyed after another particular estate is determined, and, secondly, into the reversion, which is the residue of an estate left in the grantor and his heirs, to commence in possession after the determination of some particular estate granted. Where a man grants by one and the same instrument lands to A. for twenty years, and then to B. and his heirs forever, B.'s interest is a remainder; where lands are granted to A. for life, or to A. and his male issue, and A. dies or there is a failure of male issue, there is a reversion, by operation of law, to the grantor, to be again disposed of at pleasure.1 In short, while estates or interests are said to be in possession when the person having the estate or interest is in actual enjoyment of that in which such estate or interest subsists, an estate or interest is in expectancy when the enjoyment is postponed, although the estate or interest has a present legal existence. The doctrine of expectant estates, as applied to lands and tenements, gives rise to some of the most curious, not to say the most subtle and perplexing, distinctions of legal science. - § 136. How far this Doctrine applies to Personal Property. — How far does this doctrine apply to personal property? Anciently it had no application whatever. There was no such thing legally possible as an expectant interest in chattels; and this because of the perishable nature of such property, its insignificance, and its movable characteristics. Houses and lands would remain comparatively unchanged through a succession of owners; but animals died, furniture and garments wore out, and money required to be kept in 1 See 2 Bl. Com. lec. 11; Co. Lit. 142, 143. constant circulation; so that the ownership of these latter things was of little consequence unless immediate, complete, and exclusive. So, too, a party in expectancy of lands, or those guarding his interests, might watch the party in possession, and check all attempts on his part to commit waste; and however much the incidents might have been damaged, the freehold remained intact. But who would undertake to trace single chattels through a series of years, when the possessor might destroy, secrete, or remove them beyond the reach of remainder-men and reversioners? The temporary occupation of lands, the collection of rents, the gathering of annual crops, these constituted a substantial usufructuary enjoyment of property in the eyes of men. But in an age when capital and income were unknown, and the loan of money for recompense was deemed an offence, the use of movable property given to one with a remainder over, would have been worth either too little or too much to the remainder-man, according to the measure of his predecessor's conscience. While, therefore, our English ancestors, being stimulated by the desire to control freehold property and to transmit hereditary titles to unborn offspring, favored from early times the creation of estates, more or less valuable, and for longer or shorter periods, in lands, so that one might have an immediate interest, while another's was by postponement, the law refused to sanction an application of the same principle to goods and chattels. But the rule which thus discriminated between things real and things personal began to relax as these two species of property assimilated more closely, in value and importance, to one another; and in modern times, when mercantile enterprise has developed new sources of wealth and new species of permanent investments, the force of the old objections to limitations of personal property is well-nigh spent; and failing the reasons, the rule must fail. If real estate is valuable to-day, so is personal property; if the one can be preserved intact, so to a great extent can the other; if the enjoyment of rents and growing crops for years or for life is valuable, not less so is the receipt of interest and dividends for a like period. Hence we shall find that the doctrine of interests or estates in expectancy has come at last to be applied with much the same force to personal as to real property; though not absolutely so, since the two systems were built up apart, and each has its essential and peculiar characteristics. § 137. As to Personal Property; Interests, Immediate or Expectant. Let us bear in mind that the expectant estate, at common law, whether by way of remainder or reversion, takes effect after some particular estate which was created at the same time- such as an estate for life or for years has determined. Thus, if I have a piece of land, I may grant it to A. for twenty years, then to B. and his heirs forever; or, granting it to A. for twenty years and nothing more, the law implies that the reversion is in me and my heirs. A. in such case has the particular estate; while B. by way of remainder (or I, or my heir again, by way of reversion) has the estate in expectancy. So much for real property. Now, to take the case of personal property. If I have one hundred shares of bank stock, and give the income to A. for twenty years or for life, then the principal to B., the interest of A. is particular, while that of B. is in expectancy. Whether the property, then, be real or personal, and whatever the technical terms employed to distinguish them, two interests in the property are created simultaneously: the one, the particular interest, to take effect presently; the other, the interest by way of remainder or reversion, which is to take effect hereafter. But while lands are only the subject of tenure at the common law, and held by estates therein, not owned, personal property is essentially the subject of absolute ownership. This fundamental difference in theory has already been pointed out. To say, then, that goods and chattels may be settled or limited by the creation of estates in them, would not be literally correct. The use of the terms estates for life, in remainder and in reversion, in the present connection, must, therefore, be rather by analogy than in a literal sense. We 1 Supra, § 6. |