COMMON LAW 247
ing that the trust to sell or purchase is not to arise until after the, settlor’s death.
III. E FFECT OF THE FAILURE OF OBJECTS FOR WHICH CONVERSION WAS DIRECTED IN A WILL OR DEED .
- Two cases must be distinguished :
(i) Cases of total failure.
(ii) Cases of partial failure,
(i) Cases of total failure
Where there is a total failure of the objects before or at the time when the deed or will came into operation, or before the time at which the duty to convert is to arise, no conversion will take place at all and the property will remain as it was. The reason is that, there is no one who can insist upon the character of the property being altered.
The failure must be prior failure and not subsequent failure.
The rule regarding conversion is uniform in the case of total failure and there is no difference between the effects of a direction in a deed and a direction in a will.
(ii) Cases of partial failure
Where the purposes have only partially failed, then conversion is necessary to carry out such purposes as have not failed. Consequently the doctrine of conversion would operate and the representative entitled to take the property in the form in which it is directed to be converted.
It will be carried out to the extent necessary.
Illus . :
A devises Realty to trustees upon trust to sell and divide the sale proceeds between B and C. B predeceases A and C survives him. Here, sale is necessary in order that C may have what A intended to give him, i.e., money. C will take his share in money.
What would happen to the share of B ?
It is money in fact and ought to go to the next-of-kin. But it will go to the heir because conversion to that extent was unnecessary. Heir takes it but as money.