thing different from the dispositions expressed, or to limit or control the legal inferences and presumptions arising from those expressions. Nor would it be admissible to show such declarations alone to prove a direct intent of the testator to revoke or adeem a legacy. It would be, in either case, to make or revoke a will by parol, which is alike contrary to the general rule of law and to the statute of frauds.

But when an act is done, which, if done with one intent, will operate as an ademption, and, if with a different intent, otherwise, under the rule already stated, evidence of the declarations of the intent may be given to qualify the act, and the act operates by way of ademption. Here the declarations made at the time of the advance and payment of the money, not being contradictory to the receipt, but in conformity with it, prove conclusively that they were made in part satisfaction of this legacy. Besides, if it were necessary to resort to that principle, it is a well-established exception to the general rule excluding parol evidence to explain and control a written instrument that a receipt for money may be so explained and controlled.

But there is another fact stated in the case which it seems competent to show by parol evidence, and which leads to the same conclusion. It is stated that the testator expressed his desire to the plaintiff at the same time to pay off the legacies to his brothers and sisters in his lifetime, and that he offered to pay her the balance of her legacy, which she declined receiving. What is the inference from an offer to pay the balance, except that part was already paid? On the whole, we are satisfied that the evidence, to the extent of showing the intent and purpose of the payment, was admissible; and, being admitted, it proves conclusively that it was a payment on account of this legacy.

As to the objection that at the time of the payment the plaintiff was a feme covert, we are of opinion that it does not vary the result. It is very clear that the plaintiff's husband, having died before the testator, had no interest in this legacy. The only ground, therefore, is that the plaintiff was at the time of the payment under the disability of coverture. But we have seen that ademption depends solely on the will of the testator, and not at all upon the ability of the party receiving to give a valid discharge. Had the money been paid to trustees or others for her benefit, without any act or consent of hers, if given expressly in lieu or in satisfaction of such legacy to her, it would have operated as an ademption. Had he purchased a house or other property in her name and for her benefit, with the like intent and purpose expressed, it would have had the same effect. The circumstance of her disability, therefore, at the time of the payment, is not inconsistent with the testator's intent, in making it, to advance and satisfy the legacy to her; nor does it affect the efficacy of such payment as an ademption. The balance of the legacy having been paid into court, nothing now remains due.

Plaintiff nonsuit.

II. Performance 3

BLANDY v. WIDMORE.

(Court of Chancery, 1716. 1 P. Wms. 323, 2 White & Tudor Lead. Cas. Eq. 417, 24 Eng. Reprint, 408.)

Upon the marriage of A. with B. there were articles reciting, that, in consideration of the marriage and of the portion, it was agreed, that if B. the wife should survive A. her intended husband, A. should leave B. £620, and accordingly A. covenanted with B.'s trustees, that his executors, within three months after his decease, should pay B. £620 if she should survive him. A. died intestate, and without issue; upon which B. the wife, by the statute of distribution, became entitled to a moiety of the personal estate, which was much more than £620, and the question was, whether the distributive share belonging to B. being more than £620 should go in satisfaction of it?

Serjeant Hooper: This £620 is a debt, and debts must be first paid, after which the distribution is to be made; and if the intestate had made a will, probably he would have given to his wife something additional to this £620. Now, what the statute gives is not his gift, and being not his gift, is not to be taken as his payment; or supposing, it to be his gift, still it cannot be said to be his payment.

LORD CHANCELLOR. I will take this covenant not to be broken, for the agreement is to leave the widow £620. Now the intestate, in this case, has left his widow £620 and upwards, which she, as administratrix, may take presently upon her husband's death; wherefore let her take it; but then it shall be accounted as in satisfaction of, and to include in it, her demand by virtue of the covenant; so that she shall not come in first as a creditor for the £620, and then for a moiety of the surplus.

And Mr. Vernon said, it had been decreed in the case of Wilcox v. Wilcox (Trin. 1706) 2 Vern. 558, that if a man covenants to settle an estate of £100 per annum on his eldest son, and he leaves lands of the value of £100 per annum to descend upon such son, this shall be a satisfaction of the covenant to settle; and that this last was a stronger case, it being the case of an heir, who is favoured in equity; also the case of Phinney v. Phinney, Id. 638, was cited.

Whereupon the decree made by Sir John Trevor, Master of the Rolls, was now affirmed by Lord Chancellor Cowper.

For discussion of principles, see Eaton on Equity (2d Ed.) §§ 96, 97.

CONVERSION AND RECONVERSION

I. Conversion 1 1

1. EQUITABLE CONVERSION Defined

CRAIG v. LESLIE.

(Supreme Court of the United States, 1818. 3 Wheat. 563, 4 L. Ed. 400.) See ante, p. 74, for a report of the case.

(Supreme Court of Pennsylvania, 1903. 206 Pa. 628, 56 Atl. 67, 98 Am. St. Rep. 799.)

Appeal from Orphans' Court, Perry County.

In the matter of the estate of Josiah K. Cooper. From a decree dismissing exceptions to the auditor's report, Annie Cooper appeals. Reversed.

From the record it appeared that the testator died on July 26, 1898, leaving to survive him a widow, but no children. The evidence. showed that the testator in his lifetime gave various notes to nephews and nieces. The will is quoted in the opinion of the Supreme Court. The executor, after leasing the farm, sold it on September 21, 1900, for $5,100. The whole of the personal estate was applied to the payment of debts other than the notes given to nephews and nieces. It appeared that these notes were given without consideration. The auditor sustained by the court applied a portion of the proceeds of the sale to the payment of the notes, thus postponing the widow.

BROWN, J. Josiah K. Cooper, the testator, died July 26, 1898, and the controlling question raised on this appeal is whether, by the terms of his will, there was a conversion of his real estate from his death, or from September 21, 1900, the time it was sold by his executor. The clauses in the will from which it must be determined when

1 For discussion of principles, see Eaton on Equity (2d Ed.) §§ 98-106.

the conversion took place are: "Third. I direct that my farm be leased if the same can be done to advantage, otherwise I direct that my executor shall sell the same at public or private sale, at such time as he shall deem it expedient so to do, and I hereby authorize and empower him to make good and sufficient deed for conveying the same to the purchaser. Fourth. I give and bequeath to my wife, Annie Cooper, the one half of all proceeds from my estate arising from real or personal effects when the same is sold. She to have the one half of the proceeds of the farm during the term of any lease thereof. This bequest to be in lieu of all dower, right of dower and exemption. Fourth. I give and bequeath all the rest and residue of my estate or the proceeds thereof to Mary J. Linn, of Connelsburg, Mahoning county, Ohio, Geo. A. Cooper, J. D. Cooper, Samuel C. Cooper, Frederick S. Cooper, and Harry Cooper, Elam Cooper, sons of Andrew Cooper, deceased, share and share alike."

Conversion takes place from the death of the testator only when there is a positive direction to sell. If, as was said in Hunt's and Lehman's Appeals, 105 Pa. 128, and subsequently repeated in Irwin et al. v. Patchen et al., 164 Pa. 51, 30 Atl. 436, anything ought to be settled by this time, it is that, in order to work a conversion of a testator's land into money from the time of his death, there must be either "(1) a positive direction to sell; or (2) an absolute necessity to sell in order to execute the will; or (3) such a blending of real and personal estate by the testator in his will, as to clearly show that he intended to create a fund out of both real and personal estate, and to bequeath the said fund as money." "The direction to sell must be absolute and unconditional." Stoner v. Zimmerman, 21 Pa. 394. "To establish a conversion, the will must direct it absolutely, or out and out, irrespective of all contingencies" (Anewalt's Appeal, 42 Pa. 414); and, "unless there be an imperative direction to sell, irrespective of contingencies and independent of discretion, conversion will not take place until the sale is actually made (Id.; Henry v. McCloskey, 9 Watts, 145;" Peterson's Appeal, 88 Pa. 397). "It must not rest in the discretion of the executor, nor depend upon contingencies." Jones v. Caldwell, 97 Pa. 42. "It must be imperative, not contingent or discretionary merely, or a conversion does not take place until the sale is actually made." Mellon v. Reed, 123 Pa. 1, 15 Atl. 906.

In the case before us there is no positive direction to sell. It is in the alternative. The first and positive direction is that the farm be leased, and no limitation is put upon the time for which it is to be leased. It is to be leased if it can be leased to advantage; that is, so long as it can be leased to advantage, and only "otherwise"—that is, when the executor can no longer lease it to advantage-is it to be sold. It might have been leased to advantage during the lifetime of the widow, and she would have received one-half of the proceeds during that period; and there is no direction to sell at her death. The

sale which the executor was authorized to make depended upon a contingency which might never have happened. The testator may have thought that his farm would have to be sold, but he gave no unconditional direction to sell it, and it might have been leased to advantage indefinitely. As there was no conversion under a positive direction to sell, so there was ho absolute necessity to sell in order to execute the will, for the leasing of the farm during the lifetime of the widow and giving her one-half of the proceeds during life would have carried out the provisions of the will. Nor does the intention of the testator clearly appear that from the time of his death there should be such blending of his real and personal estate as to create a fund out of both, to be bequeathed to the legatees as money, for such a blending depended entirely upon whether or not the alternative direction to the executor to sell should be carried out. There were to be no proceeds from the sale of the farm, unless the same should be sold after it was learned that it could not be leased to advantage. The conversion of the testator's farm took place, therefore, when, in the exercise of the mere discretion reposed in the executor, to be exercised only on a certain condition, it was sold on September 21, 1900 -more than two years after the death of the testator.

As there was no conversion of the farm until September 21, 1900, the notes given to the appellees ceased to be liens upon it on July 26, 1900, when two years had expired from testator's death. It is not necessary for us to consider the purpose for which the appellant alleges these notes were given, for, even if in each instance they were executed and delivered by the decedent for a valuable consideration, and represented his bona fide indebtedness, they ceased to be liens upon his real estate at the expiration of two years from his death, because the holders had not, as required by Act June 8, 1893 (P. L. 392), brought suits upon them. If, after July 26, 1900, the testator's land was discharged from all liability for the payment of these notes, the proceeds of a subsequent sale of it were not bound by them; and if, after that date, the holders of the notes could not have looked to the land, how can they turn to the purchase money for payment? The notes may have represented debts of the testator, for which his land was liable at the time of his death, and would have continued so if the statute had been followed; and his personal estate might have been indefinitely held for their payment, but the proceeds of the sale of his farm, at the time it was sold, formed no part of his estate, real or personal.

The land itself had been freed from the obligation of his unsecured debts on July 26, 1900, and whatever took its place was equally absolved. In Kerper v. Hoch, 1 Watts, 9, and Commonwealth v. Pool, 6 Watts, 32, in passing upon a statute similar in its provision to the act of June 8, 1893, it was held that the limitation annexed to the lien of a debt of the decedent on his lands was not exclusively for the security of purchasers, but that heirs and devisees were equally