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These regulations, however, can only apply to personal property, or to real hereditaments which are directed to be sold and converted into personal estate; and which are in equity immediately upon the death of a testator invested with all the qualities of personalty. When mines, therefore,—whether worked or unworked, and whether forming a distinct inheritance or not, are devised as the freehold or copyhold hereditaments of the testator without any directions for conversion, or if they descend in this state to the heir, they will follow the course of alienation pointed out by the testator, or by the will of the law, without being subject to tho rules applicable to personal property of a perishable description; for, in such cases, mines will be placed beyond the general control of trustees and personal representatives. They must be enjoyed in the manner in which they devolve or descend.
If, again, the mines form part of the personal property of the testator, either in connection with the lands in which they are situate, or as a separate possession in the lands of others, and are devised as a specific bequest, either immediately to the parties entrusted, or through the intervention of trustees for them, the subject of devise must also be taken and enjoyed in the mode appointed by the testator. It will make no difference if the objects of the testator's bounty are directed to take absolutely or in succession for limited interests, with remainders over. As the testator has not thought proper to direct a sale, the law presumes that he intended his property to be enjoyed in the actual condition in which it is left by him. The ordinary principles of law which will be presently mentioned, and which arise from the propriety of avoiding risk in winding up the affairs of a testator, or of making adequate provision for persons successively interested in the subject of devise are, therefore, deprived of their operation. (a)
It remains only to consider, therefore, the consequences resulting from a devise of mines, when they form, or are directed to form, personal property, and arc not the subjects of a specific devise, or of any special directions.
The law imposes upon an executor and administrator, the duty, and affords him the power, of collecting the assets, and distributing the effects of a testator; generally speaking, they have the complete control over the personal property of the deceased. (5) It is their duty to perform their trust in a manner most advantageous to the estate. When mines, therefore, have been vested in an executor without any special directions with respect to them, or pass to the administrator by operation of law, these personal representatives will have full power to dispose of them, without reference to tho fact of their being classed amongst property of a perishable and uncertain nature. It has been held, indeed, that direct acts of abuse, misapplication of assets, fraudulent or neglectful mismanagement of the estate, will charge them with the consequences of a devastavit, and will render them personally liable. (c)
(a) Gibson v. Bott, 7 Ves. 96. Howe v. Lord Dartmouth, 7 Yes. 147.
But courts of equity have always been extremely liberal in defining the duties of an executor or administrator, and cautious in rendering them liable upon slight grounds, (a) There does not appear to be any reason for concluding that a personal representative is obliged, under such circumstances, to dispose of the mining property of the deceased, although he would certainly be liable for consequences induced by carrying on, or concurring in carrying on, mining stipulations in an unreasonable or neglectful course of mismanagement. It has been seen that mining is a kind of trade, though it would be impossible to establish any complete analogy to ordinary trading. Now the personal representatives of a deceased owner have, in general, no authority to carry on his business. (6) And with respect to the public, they will become personally liable on failure of assets, to all debts contracted in connection with it since the death of the owner. (c)
It may be observed, however, that in cases of distinct contract by the deceased, the representatives will be bound to carry on a business. (cT) This sometimes happens in cases of partnership.
Such would appear to be the situation of an executor, when the mines are destined to devolve immediately for the benefit of persons taking permanent interests in the funds. But if, on the other hand, they are to form a property, or part of a fund, limited first to tenants for life, and then to persons in remainder, it may be clearly deduced from the cases on this subject, not only that a tenant for life may call upon the executor or administrator to convert the property into the 3 per cent, consols—but that they will be personally liable for the consequences if they do not so convert it. For it might otherwise happen, that the persons in remainder could derive no benefit from the devise, by the entire exhaustion of the profits and property during the enjoyment of the tenant for life.
This principle of the courts of equity is of such universal application, that it is contained in every decree under such circumstances, with respect to any wearing out funds, or any fund in which the tenant for life might have an advantage over those in remainder. It applies to all the public funds, except those invariably selected by the courts for the investment of mines, viz., the per cent, consols, (e)
In a late case of importance, a testator gave the residue of his personal estate to trustees, with directions for them to convert and invest the proceeds in government or real securities, of which they were to stand possessed, upon trust for a tenant for life, with remainder over. The trustees permitted a share which the testator had in an Indian loan, bearing interest
(a) See Powell v. Evans, 5 Ves. 843. Raphael v. Boehm, 13 Ves. 410. Tebbs v. Carpenter, 1 Madd. 298. Garrett v. Noble, 6 Sim. 504.
(i) Barker v. Barker, 1 T. B. 295. Ex parte Garland. 10 Ves. 119.
(c) Wightman t,. Townroe, 1 M. and S. 412.
(d) Marshall r. Broadhnrat, 1 Crompt. and J. 405. 1 Tyrw. 350.
(O Howe v. Earl Dartmouth, 7 Vos. 150, and the cases cited in p. 141. .
at £10 per cent., to remain for several years unconverted, and paid, during that time, the whole of the interest to the tenant for life. The loan was afterwards paid off, and the money was invested in the 3 per cents., at a time the funds were so low, that the amount of stock purchased was considerably greater than if the conversion had taken place at the end of a year from the testator's death. It was held by Lord Gifford, that the tenant for life was not entitled to the actual interest which the money yielded on the Indian security, but only to the i ividends of so much 3 per cent, stock as would have been purchased with it at the end of a year from the testator's death; that the trustees ought to be charged with the whole of the stock actually purchased, and all the sums actually received, and that they ought to be allowed in their discharge as paymemts to the tenant for life, not the sums actually paid to her, but only a sum equal to what she would have received for dividends, if the money had been transferred from the Indian security, and invested in the 3 per cents, at the end of a year from the testator's death. Lord Lyndhurst, on appeal, confirmed this judgment, (a)
The same principle will equally apply, when there is no express direction in the testator's will for the conversion of his personal estate; for it has been held, that what the court would decree, it will expect from an executor. (J)
In the case of Cranch v. Cranch, (c) an enquiry was directed under similar circumstances, whether it was for the benefit of the person entitled to the clear residue of the personal estate to have certain leasehold premises sold; and if it would be for their benefit, it was ordored that they should be sold, and that the money should be laid out in the 3 per cents., the dividends to be paid to the tenant for life, with liberty to apply after her death; and the practice of the court is stated by Lord Eldon to be, not to permit a real security to be called in without an enquiry whether it would be for the benefit of every person. (J)
But in the case of working mines, there can be no reason for supposing that it would be necessary to apply to the Court for an enquiry to be made, or that the Court would not order the conversion to be made at once, for the above principle of law applies with greater force to mines than perhaps any other description of property. In such cases the interest is infinitely variable and more perishable than those kinds of property which the Court has considered subject to conversion. A tenant for life might not only rereccive an annual sum far beyond the interest of the produce which would have resulted from a sale, but he might actually anticipate the whole fund reserved for those in remainder.
(a) Dimes v. Scott, 4 Russ. 195. See also Fearns v. Young, 9 Ves. 549.
The proper time for conversion is stated by Lord Eldon in the case last cited. If, he observed, the principle was, that the court, when its observation was thrown upon it, will order the conversion, it ought to be considered to all practicable purposes as converted, when it could be first converted; for no party ought to suffer by the circumstance, that what ought to have been done, and what the court would have directed to be done immediately on the testator's death, was not done.
But this duty is not so imperative as to require an immediate sale. Even when property is directed by the testator himself to be sold, as soon as conveniently after his decease, or with all convenient speed, and the property is not sold, the value of the property will not be taken at the time of his death. Iu one case, Lord Eldon himself observed, that if a fund is to be converted with all convenient speed, those words never required it to be sold the very next day. The Court was obliged to take a general rule, as it was impossible to make the enquiry in every particular case. The rule was the end of a year after the death, (a)
If, therefore, the property be not sold within the year, the value will be taken at the end of the year from the death of the testator, and the trustees will be responsible for a depreciation after that period. But whether the property be actually sold or not, within that time, the person entitled for life will acquire a right to an interest from the time of the testator's death ; (6) but the interest will be calculated upon the actual produce of a sale within the year; or if not sold, upon what would have been produced, if a sale had taken place at the end of a year from the testator's death, (c)
It is sometimes stipulated in copartnership deeds for carrying on mines for a term of years, that the parties and their personal representatives shall not be allowed to alien their shares without leave from the company. The question then arises when any of these shares are limited in the manner just mentioned, to a tenant for life, with remainder over, in what manner the tenant for life is to be precluded from the possibility of exhausting thejfund. It does not appear that there is any ground of distinction from ordinary cases, except indeed, that the value of the property cannot be tested by an actual sale. Recourse must therefore be had, to valuation by competent persons. It is certainly very difficult to estimate the proper value of mining property. The adventure may be crowned with success, or its prospects may be blasted by the experience of a day. This difficulty would be seriously increased if a valuation were required to be made with reference to some remote period. Every thing, however, has its supposed value, though that value may differ most materially from its real worth. The law acts upon general rules—there is, in this instance, the same necessity for the exercise of the rule; and if re
(o) Gibson v. Bott, 7 Ves. 89. See also Sitwell v. Bernard, 6 Ve«. 520,
(6) Angerstein v. Martin, 1 Turn, and Ross. 232, Hewitt ». Morris, Ibid. 241.
(c) Dimes v. Scott, 4 Rasa. 209.
course cannot be had to the best of all tests of value, viz., an actual sale, yet this does not preclude an approximation to the value by other means. In cases where no sale is effected for a considerable period, the interest payable to the tenant for life, as we have seen, must be calculated with reference to the same mode. In the case of Gibson v. Bott, (a) the Court directed that, as it was for the interest of all parties, that the leasehold property should not be sold, a value should be set upon them; and the persons entitled for life should have the interest at 4 per cent, upon that value. In like manner, when an actual sale cannot be resorted to, as in the case we are discussing, a valuation must be made by competent persons, and interest allowed upon the amount. This valuation may be made at any time within a year from the death of the testator, but in the case of property liable to considerable fluctuation, to prevent disputes, it might be advisable to postpone the valuation till the end of the year. (6) It will be seen afterwards, that in cases of partnership, mines held for freehold interests in certain cases, on the death of an owner, will be classed amongst the personal property of the firm, and be transmissible accordingly. (c)
BY OPERATION OF LAW.
It is scarcely necessary to say that mines, like other kinds of real property, are subject to the usual laws of descent, devolution, and transfer, by act of law, according to the freehold or chattel interest acquired in them. We shall, therefore, only have occasion, in this section, to notice any peculiarities which may attend s:mo cases of transfer by act of law.
Mines held in fee which aro opened, are liable to dower. Dower should be assigned within forty days after the death of the husband, and an actual estate in dower does not arise till assignment by the sheriff or the tenant.
It has been held, however, that a widow is not entitled to dower in respect of mines which have not been opened. (cT) The reasons for this decision are not recorded, but they may be presumed to consist in the uncertain nature of the property, and the impracticability of effecting an assignment.
There is no difference in the liability of mines forming a separate inheritance. (e)
In the case just cited, the Court was of opinion that the widow was dowable of all mines of the deceased husband, a3 well those in his own landed estates, as those in the lands of other persons, which had been wrought or opened before his death, and wherein he had an estate of inheritance,