Nicol v Chant [1909] HCA 4

7 CLR.) OF AUSTRALIA,

(HIGH COURT OF AUSTRALIA.]

ECOL S. 7 : ° é : r . APPELLANT; DEFENDANT, AND CHANT AND OTHERS . , 7 ¢ . RESPONDENTS.

PLAINTIFF AND DEFENDANTS,

ON APPEAL FROM THE SUPREME COURT OF 'TASMANIA,

Will—Interpretation—Devise of real estate—Land subject to option of purchase— Buercise of option after death of testator—Conversion into personalty—Contrary intention expressed in will,

'The rule laid down in Lawes v. Bennett, 1 Cox Cas. in Ch., 167, that, where a testator by his will gives his real estate to A. and his personal estate to B., and his land is at his death subject to a lease with an option of purchase, upon the exercise of the option the land is converted into personalty, and that the con- version operates retroactively so as to entitle B, to the purchase money, only applies where the testator gives his real estate to one and his personal estate to another simpliciter, and there is no context from which a contrary intention may be gathered.

A testator when he made his will was possessed of a hotel property subject toa lease for a term of seven years with an option in the lessor to purchase during the term for a certain sum, and the hotel property was then subject to a mortgage. By his will he devised all his 'real estate " to his trustee upon trust to pay the rent and income thereof to his wife for life, and after her death he directed his trustee to stand possessed of his " said real estate" upon trust to sell and convert, and to divide the net proceeds and the rent and income thereof until sale among four named persons. He then bequeathed to his wife a number of named classes of personal chattels and also 'all other my per- sonal property absolutely," and he then empowered his trustee to raise any money on his "real estate" or any portion thereof for the purpose of paying off any mortgage on his ''real estate." At the death of the testator the hotel