In our opinion, the daughters have clearly the right in this controversy. The general rule is indisputable that the personal estate is the first and natural fund for the payment of debts, and the real estate is not to be made liable thereto, except to supply the deficiency of the personal. It is sought, in this case, to subject the proceeds of the land devised to the daughters, because, by the direction of the testator to sell the land, he turned it, in the contemplation of a court of equity, into personalty, and made it a part of his general personal estate. This (490) position, to the extent to which it is pressed, is untenable. The real estate directed to be sold was, at the time of the testator's death, land. By the will it was to remain land until sold, and it was directed to be sold only for the convenience of division between the devisees. It was impressed with the character of personality so far as was necessary to effectuate the testator's purpose, but no further. Every person taking an interest under a will, in the produce of land directed to be sold, is in truth a devisee, and not a legatee. As he takes from the bounty of the devisor, he must receive what is given, in the quality which the devisor has impressed upon it. The devisor has given, not the land, but the price of the land; and although the trustee is not bound to sell if the cestuique trust will take the land itself, yet the land in the hand of the cestuique trust is, in equity, regarded as personality; and if he die without any act to change its quality, it is personalty as between his heir and executor. The devisor might, if he pleased (see Kidney v. Consmaker, 1 Ves. Jr., 436, and 2d ib., 267) have converted the land into money, out and out, and then, from the whole context of the will, it would have been open for consideration, whether it was made an *Page 382 auxiliary fund for the payment of debts or was thrown into the ordinary fund as a part thereof, or constituted the primary fund in exoneration of the personal estate. But even in these cases the executors take as devisees; it is not strictly a part of the testator's general personal estate, but real assets, applicable in their hands to the payment of debts, because devised to them in trust, to be so applied. And in England, however it may be with us, the proceeds of land so converted are held to be equitable and not legal assets. Barker v. May, 9 Barn. and Cress., 489 (17 Eng. Com. Law Reps., 426). But a conversion of land into money, directed for the benefit of the devisees, creates no charge upon the land for the payment of debts, and does not make the proceeds either legal or equitable assets in the hands of an executor. He holds these (491) proceeds simply as a trustee for the devisees. Gibbs v. Angier, 12 Ves., 413; and see Smith v. Claxton, 4 Mad., 484.
The bill submits to the Court also the quantum of commissions to which the executor is entitled. The ordinary tribunal for deciding on such a question is the County Court; and although when a court of equity is resorted to for the settlement of an estate, it may, as incidental to the exercise of this jurisdiction, determine that question also, it ought to have the materials before it, as far as practicable, to enable it to form an advised judgment. We should require for that purpose an examination, by a commissioner, of the nature and quality of the services rendered by the executor, and a report from him, before we acted upon the subject. This has not been moved for, and we should not direct it without a motion. It will produce costs which neither party may be willing to incur.
It is highly probable that the declaration of our opinion on the main question in controversy will enable the parties to come to a complete settlement. If it should not, either party may hereafter move in the cause as he may be advised.
PER CURIAM. Declare accordingly.
Cited: McBee, ex parte, 63 N.C. 335.