dends upon that part of the stock which he | basis for the distribution of the stock each does not own. Thus, the credit he designed appears to be only the earnings of his own stock; and it follows that, as he transfers his stock to the young men, that which is transferred is to be thereafter considered as belonging to "other parties," and the dividends declared upon it deducted from the credit; and I understand the further intent to be, that those dividends, at least so far as this ascertainment of the credit is concerned, shall be based upon the entire net earnings of the company. This is hardly the grammatical construction of the sentence in which the enigmatical words occur, but it is not only what I conceive to be the underlying intent, but is also the practical construction which the parties to the agreement put upon it in their settlement in February, 1893. In Chicago v. Sheldon, 9 Wall. 50, Mr. Justice Nelson stated, as a rule of construction of a contract, that "in cases where the language used by the parties to the contract is indefinite or ambiguous, and hence of doubtful construction, the practical interpretation by the parties themselves is entitled to great, if not controlling, influence. The interest of each generally leads him to a construction most favorable to himself, and, when the difference has become serious and beyond amicable adjustment, it can be settled only by the arbitrament of law. But in an executory contract, and where its execution necessarily in- | volves a practical construction, if the minds of both parties concur, there can be no great danger in the adoption of it by the court as the true one." See, also, Topliff v. Topliff, 122 U. S. 121, 7 Sup. Ct. 1057; District of Columbia v. Gallaher, 124 U. S. 505, 8 Sup. Ct. 585; Nearpass v. Newman, 106 N. Y. 47, 55, 12 N. E. 557; 1 Greenl. Ev. 293. This rule has been frequently applied in this state where the description in grants of land are ambiguous or uncertain. Jackson v. Perrine, 35 N. J. Law, 137; Den v. Van Houten, 22 N. J. Law, 61; Opdyke v. Stephens, 28 N. J. Law, 84; Southmayd v. McLaughlin, 24 N. J. Eq. 181; Baldwin v. Shannon, 43 N. J. Law, 597; Land Co. v. Lippincott, 45 N. J. Law, 405.

Another consideration which should incline the court to act upon this practical construction is the fact that the agreement is really the promise of a bounty from Mr. Helme, crudely expressed, which should have the interpretation he put upon it, and in which his son and son-in-law justly acquiesced. The complainants will be instructed that the annual credit to George A. Helme and John W. Herbert, Jr., shall be ascertained by deducting from the net earnings of the company the dividends paid upon all stock not standing in the name of George W. Helme, or in the names of the executors of his will, or in the names of the legatees of the one-third of the stock which he bequeathed, their executors, administrators, or assigns. Taking such credit as a

year, they will transfer to George A. Helme and John W. Herbert, Jr., as many shares as the credit represents, at $300 a share, first collecting the dividend of the stock transferred, provided, however, Messrs. George A. Helme and Herbert shall have devoted their whole attention to the business of the company during the year. This annual distribution shall continue until two-thirds of the 4,750 shares shall have been so transferred. As to the third question: It is claimed, in behalf of the infant grandchildren of George W. Helme, that provision should be made to secure them benefit from the stock which is ultimately to be transferred under the agreement of October 1, 1889. That stock, as has been seen, is to be held by the executors, and applied to the performance of the agreement. Until the agreement is performed, it remains the property of the testator, and constitutes part of his residuary estate, three-fourths of which is ultimately to go to the grandchildren. It will gradually vanish from the residue as the agreement is being executed. The children of Mr. Helme are entitled to the income of three-fourths of the residue during their lives. Their lives may continue during the entire execution of the agreement, and until the shares in question shall be fully transferred and the income to the residue therefrom shall cease. In behalf of the infants, it is insisted that it is inequitable and unfair, in view of the fact that the testator evinces an intention that the whole of the residue of his estate shall be successively enjoyed by life tenants and remainder-men, that the whole income of this vanishing asset shall go to the tenants for life. Where a testator bequeaths the residue of his property without specific description, or, in other words, indicating an intention that it shall be enjoyed in specie, first to a tenant for life, and then to a remainder-man, and thus manifests that the same fund shall be successively enjoyed by both, the necessary inference and established rule in equity are that it must be invested as a permanent fund, so that the successive takers shall enjoy it in an equally productive capacity. But where it consists in whole or in part of property which is in its nature perishable, which for some reason cannot be converted into money, or cannot be so converted without great sacrifice of both principal and interest, the tenant for life will not be entitled to the annual product which the property thus perishing is actually mak ing, but to interest from the testator's death on the value thereof, estimated as of that time. Howe v. Earl of Dartmouth, 7 Ves.. 137; Gibson v. Bott, Id. 89; Fearns v. Young, 9 Ves. 549; Meyer v. Simonsen, 5 De Gex & S. 723, 21 Law J. Ch. 678; Brown v. Gellatly, 2 Ch. App. 751; Keninouth v. Brigham, 5 Allen, 270; Minot v. Thompson, 106 Mass. 583; Westcott v. Nickerson, 120 Mass. 410; Spear v. Tinkham, 2 Barb. Ch. 211; Healey v. Toppan, 45 N. H. 243; 2 Williams, Ex'rs, 1393;

Howe v. Earl of Dartmouth, 2 White & T. | shares of stock in question, until they shall be Lead. Cas. Eq. 676 et seq. See, also, Howard transferred. v. Howard's Ex'rs, 16 N. J. Eq. 486; Hull v. Eddy, 14 N. J. Law, 169, 176; Ackerman's Adm'rs v. Vreeland's Ex'r, 14 N. J. Eq. 23, 27, The reason of this rule is the just consideration that the testator has the interest of the successive takers equally in view, and intends that there shall be equality in their respective enjoyments.

It is difficult to define a rule which will accurately determine the value of the stock in question to the testator's estate at his death. It is uncertain what dividends will be paid upon it in the future, and how long any part of the stock will remain in the estate. Both these uncertainties are created by the fluctuations of the business of the company. Among the cases I have examined, I have not found one presenting precisely this situation. Those which I have cited, which in other particulars are similar to this, were presented to the courts after the entire profits of the wearingout asset had been realized by the trustees. In those cases the direction was to ascertain a sum which, if received at the testator's death, would, with interest and making annual rests, amount to the sum actually reIceived at the time it was received. That sum was to be invested as principal, and the remainder of the sum actually received was distributed as income. In the present case but a single year's profit has been received. What will be received in the future is unknown. It is out of the question to predicate the receipts of future years upon the receipts of the past year. They may be more, or may be less. It will not do to wait until the entire profit shall have been realized, for such a delay would be a hardship to the life tenants. I therefore think it is proper that the rule stated should be applied to each dividend as it is received. The sum going to principal will be invested, and the income from such investment will go annually together with the distributions from the several dividends, cal

I think that the rule is applicable to this case. The stock in question cannot be sold, for the testator expressly directs that it shall be held to answer a designated purpose, purpose, which, in all probability, will consume it within a few years. While it remains in the residue, it will yield large dividends. It is therefore a valuable, and, at the same time, a perishable, asset. The testator does not manifest an intention that it shall be enjoyed in specie. It is not to be held for that purpose. It is swept into the residue by this general language, "the residue and remainder of my estate, both real and personal, of every name and description;" and no specific refer ence is made to its enjoyment while it is in the residue. The trustees are to collect the "rents, issues, profits, dividends, interest, and income of said trust fund," and apply it to the life tenant's use. Here words are used which are applicable to income from investments of every character which may enter into the aggregate mass with which the testator deals; that is, "said trust fund." They are not meant to prescribe the holding of the securities, as the executors find them, in specie. They are to be taken together, as intended to give authority broad enough to enable the trustees to collect all income. That holding culated according to the rule stated, to the life

in specie, for the benefit of the successive takers, was not intended, is manifested in the power given to the executors to hold or change the investments at discretion. As I have already said, the stock in question is not to be held for enjoyment in specie, but for another purpose. It is true that the wearing out of the value of the stock is contingent upon performance of the agreement by the son and son-in-law, but that contingency should not interfere with the application of the rule. If the contingency should happen that they do not perform, any accumulation of surplus dividends in the hands of the trustees will constitute a fund to enable the court to afford the life tenants their legal and equitable rights. The value of the testator's interest in the stock in question is not $300 for each share. His agreement with his son and sonin-law does not contemplate that he will receive that sum. That price is merely used as a factor in a mathematical calculation, which is to control the distribution of the stock in question if the son and son-in-law perform the contract upon their part. The value of the testator's interest must be ascertained by reference to the probable value of the dividends in future upon the several

tenants.

GUARANTEE TRUST & SAFE-DEPOSIT

CO. v. MAXWELL et al.
(Court of Chancery of New Jersey. Oct. 16,
1894.)

CONFLICT OF LAWS-VALIDITY OF DEVISE-EQUI-
TABLE CONVERSION.

1. Where & resident of one state devises land situate in another state, the validity of the devise is determined by the laws of the latter.

2. The sale of decedent's land, situate in a state other than that of his domicile, made in accordance with a direction in the will that it be sold if necessary to pay legacies, does not effect a conversion of the land into personalty as at the time of testator's death, so as to make the law of his domicile apply in determining the validity of the legacy.

Bill filed by the Guarantee Trust & SafeDeposit Company, trustee, against Charles J. Maxwell and others, asking for the court's direction for the sale of trust property. Decree advised.

This is a bill, filed by a trustee, asking the direction of the court in the disposition of the trust property. The facts are as follows: Some years ago Gifford J. Maxwell and his wife, Margaret K. Maxwell, domiciled in

rule, the learned counsel for the other leg-fore it is so converted. Reference was also atees resorted to the doctrine of notional conversion, and contended in an ingenious and able argument that the effect of the disposition in question was to direct a sale of the lands in question, the effect of which, in turn, was to work an instantaneous conversion of the land into money, making it a movable, instead of an immovable, interest, and so at once to bring it within the jurisdiction of the lex domicilii. The weakness of this argument lies in the assumption upon which it necessarily rests, that the conversion took place in the lifetime of Mrs. Maxwell. Her will took effect from her death, and there could be no conversion until it did take effect. The mere fact that she in her lifetime formed the intention to cause this land to be turned into money, and expressed that intention in writing in such a manner that it would be carried into effect after her death, did not work the conversion. That could only take effect at or after her death, which was a prerequisite. At the moment when she made the testamentary disposition in question, and every moment thereafter up to and including the moment of her death, this land remained land, both in fact and in equitable fancy, and, as such, subject to the laws of New Jersey. Mrs. Maxwell necessarily dealt with it as land, and in converting it into money by her will she was not only entitled to act in accordance with the laws of this state, but she was obliged to do

She could not make the conversion without exercising dominion over the land, and that dominion she must and could exercise according to the laws of New Jersey. Reliance was placed, in this connection, on the case of Hand v. Marcy (decided in 1877) 28 N. J. Eq. 59. In that case there was a direction to convert land into money, and there was a bequest of the residue, which was composed in part of the proceeds of the sale of the land to three persons in equal shares, one of whom died in testator's lifetime, causing a lapse as to one-third of the residue. question was whether this lapsed share went to the next of kin or to the heir at law. Chancellor Runyon held that it was converted into money, and went to the next of kin. I do not find it necessary to determine whether or not that decision can be sustained in view of the doctrine established in Ackroyd v. Smithson, 1 Brown, Ch. 503, 1 White & T. Lead. Cas. Eq. 872, and the long line of cases which have followed it both in England and in this country, which are collected in the notes to the principal case in the Leading Cases in Equity. Ackroyd v. Smithson was followed by Vice Chancellor Van Fleet in Roy v. Monroe (decided in 1890) 47 N. J. Eq. 356, 20 Atl. 481, and must still be considered as authority in New Jersey. But admitting that Hand v. Marcy was well decided, it still falls short of holding, what is necessary in order to make it at all affect the present case, that land can be considered as converted into money be

made to that class of cases in which the courts have held that an alien who is debarred from becoming seised of land as such by devise or conveyance may nevertheless take under a will money which is the proceeds of the land sold for the purpose by order of the will. Craig v. Leslie, 3 Wheat. 564; Du Hourmelin v. Sheldon, 1 Beav. 79, 4 Mylne &C. 525; Anstice v. Brown, 6 Paige, 448. But those cases were decided in view of the policy of the several acts disenabling aliens to hold lands, which acts are not infringed by their receiving money. Undoubtedly they recognize the simple truth that where lands have actually been sold and turned into money, which afterwards is paid to a person, he actually receives money, and not land. But in truth the doctrine of notional conversion has no application to this case. Its proper office is to determine the devolution of a fund after it has once vested in interest in the beneficiary, but has reached his actual possession. In such cases the question is whether the next of kin or the heir of the deceased beneficiary shall take it. and that depends on whether it be considered as money or land. The general rule undoubtedly is that if, by the direction of the testator, the land is to be converted into money, and paid to the beneficiary in money, it will be considered as having been so done, although not actually sold. On the other hand, if the purpose for which the land was to be sold has failed, it will still be considered as land, although actually turned into money. Ackroyd v. Smithson, Roy v. Monroe, supra.

I find no difficulty in the other points raised by the counsel for the heirs at law. The deed of settlement, in the event which occurred, placed the disposition of this land in the power of Mrs. Maxwell, the legal title being in the complainant herein. Mrs. Maxwell, by her will, directed the legal title to be vested in the complainant as her executor, and, if the case is to be considered as if the complainant was not the grantee of the deed of settlement, the result is nevertheless that it now holds it for the trusts declared in Mrs. Maxwell's will; and those are, for present purposes: First, to pay her debts; second, to procure an annuity of $260 for her father during his lifetime (I say an "annuity," for, although the word "annual" or any equivalent is not used in the will, yet it is clearly understood); and, next, to pay $5,000 to the Pennsylvania Hospital, and other legacies.

No question was raised as to the jurisdiction of this court to direct the complainant herein, although a nonresident; nor do I think the jurisdiction questionable. The title being vested in the complainant subject to certain trusts, it was perfectly proper for it to come here to be directed in the execution of those trusts. I will advise a decree accordingly.

spondents, that the order setting aside the SMITH V. PROVIDENCE COUNTY SAV. judgment in the court below and reinstating