RAMSEY V. HANLON.
425
lence than those which have been made in this case; and the court is confident that in arriving at a verdict you will faithfully endeavor to do justice between the parties. Your verdict must be for the plaintiff for some amount, and you will allow him interest at 7 per cent. on whatever sum you find him entitled to recover, from the twenty-second day of September, 1885. Verdict for plaintiff for $16.177.77.
RAMSEY
et al. v.
HANLON
et cU.
(Cir/Juit Oourt, W. D. Pennsyl-oania. November 28,1887.) 1. CONVERSION..,..OF REAL'rY UNDER WILL-DIRECTIONS.
A testator after devising his reatestate to his wife for her life, provided by his will as follows: "After the death of my said wife I allow all my estate to be ,qisposed of at public sale, and 8S soon as the proceeds of the sale is collected it, is my will that the amount be equally divided between my daughters; share ,and share alike, viz., Polly, Nancy, Sarah, and Rachel'." He made no otherdiEiposition of his real estate. Held, that the words" Iallow" were used inlb,esense,of,PDsitivedirection, and the will worked an equitable CPDversion of the real estate. ,
This conversioD took place at the death of the testator, when, eo instanti, the shares of the daughters passed to them as personalty, S. SAME-UNDER WILL-SHERIFF'S SALE-ACT PA. FEBRUARY 24,1884. The,real estate haVing bel3n taken in execution and sold by the sheriff upon , a judgment against the testator's personal representative alone, without joining the heirs' or his said daughters, or first warning them by scire facias, agreeably to the Pennsylvania Act of February 24,1834, which requires beirs or devisees to be made parties in order to charge their real estate with the payment of the decedent's debts, in ejectment by the daughters after the widow's death, that by reason of the conversion effected by the will the act was not applicable, and the sheriff's vendee took a good title.
2.
SAME.
At Law. Action of ejectment by Mary Ramsey and others against Alexnnder Hanlon and John Hanlon, to recover certain real estate which had been taken in execution and sold on a judgment against the personal representative without joining the heirs or devisees. Ramsey & MaxweU, W. B. Rodger8, and George S. Hart, for plaintiff. M.a. Acheson and Brown & Stewart, for defendants. ACHESON; J. The only ground upon which the plaintiffsquestioll tue title acquired' by the purchaser at the sheriff's sale is that the sale was under, a judgment against Sarah McCreery, executrix of William McCreery, deceased, without joining the heirs or devisees, or warning them. hy 8cire as required by the thirty-fourth section of the act of assembly of February 24, 1834. Purdon, 530 pI. 112. But if, as the defendants contend,the will of William McCreery worked an equitable conversion of his real estate into personalty , then iUs clear that the, act
426
FEDERAL REPORTER.
has no, aplJiibation to the case. Leiper v. :ffionlson,60 Pa. St. 177. Did the will effect such a conversion? r am of the opinion that it did. Providing for the disposition of his estate upon the decease of his widow, ,the testatorrd-irects as follows :((After the death of my said wife, I allow all my estate to be disposed of at pu blic sale, and as soon as the proceeds of thesaltds collected, it ia my will that the amount ,be equally divided among my daughters, share and share alike, as follows, viz., Polly, Nancy, Sarah, and Rachel; and should an.y of them be dead before such distribution, then an equal distribution among the survivors." Now, manifestly, the words II I a.How" are here used in the sense of positive direction, for without the sale the testator's expressed intention in respect to distribution could not be cap-ied out. This interpreilltion is strongly confirmed bjrcomparing the foregoing pf6vision with a subsequent clause ofthe will, viz.: "Should mysaid wife Sarah, at any time after my death ':get married, it ia my will that aasoonafter such ItllllTiage that my estate be sold and distributed in the same manner as above provided at, the,time oiher death,givipg to my said'wifs her and ;llO ,Th1;ls hath the testator himself signified that ,he used the expression I -aHow" as the equivalent of II I will." ';Furthermore, the testator bas"tJ).a:(le no other dispqsition of his real estate. ,presumably, a 'partial intestacy was not :within his contemplation.' Without a sale of the realesti\te, theschemeofthe will, indeed, ,would be There is no lack of authority to support the conClusion tllat a conver.Appeal, sion was he,rehltelldl3d. ",-RQla'¥ldv. Miller, 100,Pa. St.47; 102 Pa. St. 317; Hufit'8.Appeal, 105 Pa. St. 128; .Appeolofthe OUy of Philadelpfiia, 112 Pa. 470, 4,Atl. Rep. 4. ,, The pl8.inti£rs, Qowever, insist that there was no' conversion, at any rate, until the death of the, widow; and hence, at the time of the sherifFs sale, the laI)d,retairied its 'character of relll"estate. But it iswell settled, at lea'st in Pennsylvania, that the,pduciple of equitable conversiOn applies notwithstanding the period of sale is remote, and the actuaIconversion cannot be madehntilthetim.earrives.Einehatt v. Hamson, Baldw. 177; .Appeal, 32 455; Leiper v.ThpmBon, 8l1;pra. In Parkinson's Appeal, supra, althditghthe real estate was devised to the testator's wHe' for life, and thesaIe {orihe purpose of distributing the pro.ceeds among the bhildrenwas postponed until after her death, it was yet the tesheld that" as ," regards the children, the conversion took tatOr's eo instanti, their shares passe<:J, to them as personalty. So here, as respects the plaintiffs. the conversion from realty to personalty occurred at the death of William McCreery. :Electibn to Hold the land atf realty is out olthe case. No evidence 'thereof was offered. That ,rio such effect can be attributed to the bringCertainly no such "election was open to ing of this action is " the plaintiffs,after the sheriff's sale. Thec(jurt thehbeing of the opinion that the putchaser at the sheriff's sale;dnderwhohl the defendants claim,took the 'whole title ftirulerly of William McCreery to the land in controversy, the'finding nlUst bem favor of· the defendants. "
FINNELL 11. SOUTHERN KAN., RY. CO.
427
And now, November 28, 1887, the court finds in favor of the defendants, and iUs ordered that judgment upon the finding of the court be entered in favor of the defendants, with costs.
FINNET.L
v.
SOUTHERN KAN.
Ry. Co.
((Jitrcuit Court, If. D. MiBBouri, W. D.
January 12,
lase.
LnnTATIONOF ACTIONS-REMOVAL OF PLAINTIFF TO ANOTHER STATE-STATUTE OF SISTER STATE.
Under Gen. St. Kan. 1868, c. 80, art. 3, 18, an action for personal injuries must beoronght within two years after the canse of action accrues, and section 25 extinguishes the cause of action after that time. The vlaintifi sustained personal injury in Kansas, and immediately w,entto Missouri, of which state he was a resident, and there resided until trial, and did not bring action until more than two years had elapsed. Held. that the statutes of Kansas would not bar an action given by the common law, uJiless both parties resided in that state during the full period of limitatiop.
On Exceptions to the Evidence. Action by J ahn K. Finnell against the Southern Kansas Railway ComThe defendant offered in evidence pany for. personal injuries the Kansas statute of limitations. The plaintiff objected thereto. Plaintiff sued the defendant for personal injuries sustained in the state of Kansas, .May 16, 1884, by falling off of the platform connected with one of defendant's station-houses on the line of its .road.At the time of the accident plaintiff was a .citizen of Missouri, and returned tahis home in Missouri immediately fj,fter the accident, where he continued to reside. until the day of trial. Defendant isa Kansas corporation, and operates a line of road extending from Kansas City, Missouri, to Harper, Do.der the laws of Kansas, an action for personal injuries is barred. after the lapse of two years. Vtde chapter 80, art. 3, § 18, subd. 3, Gen. St. Kan. 1868. Section 25 of the same article reads as follows: "When the right of action is barred by the provisions of any statute it shall be unavailable either as. a cause of action or ground of defense.» This suit was brought in the circuit court of the United States for the Western division of the Western district of Missouri, more than two years after plaintiff sustained th.e injury in qqestion. On the trial defendant's counsel pleaded and· offered in evidence the various sections of the Kansas statutes above stated, as a bar to the action. Gates,&; ,Wallace, for plaintiff. Gardiner ,Lathrop and Geo.W. McCrary, for defendant. THAYER, J., (orally, after stating thefacts.) Referring to the objection made last..evening to theintroduc'tion of the Kansas statute of limitations, I will say that in my judgment section 25, art. 3; c. 80, was intended to cause of action after the lapse of the statutory period oflim-