BALDWIN, Circuit Justice.
This case turns on the question, whether the two legacies, one specific and the other residuary, bequeathed to Mrs. Stockton by the will of Mr. Harrison, are now payable to the representatives of her husband, or her heirs and next of kin. In the case of Reading v. Blackwell [Case No. 11,612], decided at the last April term of the circuit court for the Eastern district of Pennsylvania, it was held, that all the legacies vested at the death of the testator, and did not lapse by the death of any of them, before the time of distribution and payment. It is not the interest of either party to question this ‘ construction of the will, as they both claim in virtue of a right vested in her, which, by her death, has devolved on one of them; the representatives of Mr. Stockton can claim in no other way, nor can the complainant claim in the right of his wife by substitution. This could only be done if the bequest to Mrs. Stockton had failed of taking effect, and the words of the will had shown, or justified the inference, that the testator had in such event, intended to substitute the heir, or next of kin of Mrs. Stockton. 1 Rop. Leg. 337-339, and cases cited. We can perceive no such intention in any way manifested in this will, and feel bound to give it the same construction between the parties to the present suit, as was given in Reading v. Blackwell [supra].
[809]*809Considering the interest of Mrs. Stockton as vested, and transmissible to her legal representatives, the next question is whether it was land or money at the time of her death. The directions of the will are very positive, to sell the whole of his real estate, and to make the proceeds a personal fund for the purposes of his will; it creates no trust in favour of any person as devisee of real estate, the profits arising before a sale are specifically appropriated to the payment of debts, legacies, and an annuity to his son. When sold, the proceeds are to be carried to the residuary fund, after paying the special legacies, which fund is appropriated as a surplus of the proceeds of the real estate, one half to his son, if he was alive and returned home before the period appointed for the sale; the other half to be divided among the nine residuary legatees, in proportion to their specific legacies. The time of the sale is fixed, the direction to sell is absolute, the only contingency on which it depends is as to time; so that no event can occur or intervene to prevent the distribution of the proceeds among the residuary legatees, as tenants in common. This disposition requires the application of the whole estate in a manner so utterly inconsistent with a division of real property, as leaves no doubt of the testator’s intention to make an “out and out” conversion of his real estate into personalty, for the purpose of distribution, in the very special manner directed. No contingency is provided for in the will, which refers to a reconversion of this residuary fund into land, for the benefit of any person named in the will, or the heir of any legatee, or of the testator; the contrary intent is most manifest. As there are no words of limitation to the devise of this fund, it would pass only a life estate to the distributees as real estate; whereas as money they take it absolutely, and take it in the character which the testator has impressed upon it, by disposing of it as “a residuary fund;” “the proceeds of the sale of the land,” “the surplus;” the sums directed to be taken from it, he calls “legacies,” and the distributees “legatees,” without one word which would be applicable to it as real estate. These provisions of the will bring this case within the well settled principles of courts of equity, which are very correctly laid down by Mr. Roper, in his very valuable work, from the adjudged cases referred to in 1 Rop. Leg. 341, 352, 356, 358, 364, 365, 369, 372, 373. These cases fully establish the rule, that land directed to be converted into money, is in equity to be considered as money, for all the purposes of the will. [Craig v. Leslie] 3 Wheat. [16 U. S.] 504, 577.
The counsel for the complainants consider this case as an exception to the rule, because the testator has postponed the sale of the New York estate to the maturity of James H. White, an event which could not happen till March, 1830; that therefore Mrs. Stockton having died before there could be anjT actual conversion of land into money, had a vested interest only in the land, which passed on her death to her heir, and not to her personal or legal representatives. This construction, it is said, would meet at the purposes of the will, so far as they related to her, or the interest devised to her. But these purposes must be ascertained by looking at what the permanent and final objects to be effected were; if these require an out ana out conversion of the estate into money, the court must ovex-look such as are temporary, which do not require, or even forbid, such conversion for a specified time. This discrimination is most carefully made by the testator, by directing a special application of the rents accruing till the period of sale arrives, and then making a final and absolute appropriation of the proceeds, as a fund to be created by the sale, which became indispensable to its distribution, in the manner directed. This can only be done by considering the New York estate as money, for all the purposes of final distribution, so as to give Mrs. Stockton a right to her proportion of the ninth part of the residuary fund, vested in interest, but the payment postponed till the sale, and transmissible as personal property. Had she lived she must have received it as such, and whoever is entitled to it, must take it as she would have done. Her death before the time of payment, during the continuance of a life estate, or other temporary disposition of the land, will have no effect on its character; it will be considered as money from the death of the testator, when the direction for a sale is absolute, and the proceeds disposed of as money. 1 Rop. Leg. 369; Smith v. Claxton, 4 Madd. 484; Fletcher v. Ashburner [1 Brown, Ch. 497]. It is deemed unnecessary to review the decisions of the English courts of equity on this subject, as the supreme court of the United States have examined it fully, and settled the law in the case of Craig v. Leslie, 3 Wheat. [16 U. S.] 564, 577. Land was devised to trustees to sell, and pay the proceeds to the testator’s brother, residing in Scotland; the land lay in Virginia, where an alien could not hold real estate by devise, but could take and hold personal property. The trustees refused to sell; but on a bill filed by the brother it was held, that it was a bequest of money; the court ordered a sale, and the proceeds to be paid to him. affirming the rule universally to be, “That land directed to be sold and turned into money, and money directed to be employed in the purchase of land, are to be considered as that species of property into which they are directed to be converted, and this in whatever manner the direction is given. The principle on which the doctrine is founded, regarding substance and not the forms, considers the thing directed to be done as done, where nothing has intervened to prevent it.” To this rule there are qualifications. Where the person for whose use the land is to be sold elects to hold it, he may do so, but he must make the election in fact, and in his lifetime; the [810]*810right to make the election does not change the character of the property, which passes to the persons entitled, in the same manner as if the conversion had been made in the lifetime of the first cestui que trust.
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BALDWIN, Circuit Justice.
This case turns on the question, whether the two legacies, one specific and the other residuary, bequeathed to Mrs. Stockton by the will of Mr. Harrison, are now payable to the representatives of her husband, or her heirs and next of kin. In the case of Reading v. Blackwell [Case No. 11,612], decided at the last April term of the circuit court for the Eastern district of Pennsylvania, it was held, that all the legacies vested at the death of the testator, and did not lapse by the death of any of them, before the time of distribution and payment. It is not the interest of either party to question this ‘ construction of the will, as they both claim in virtue of a right vested in her, which, by her death, has devolved on one of them; the representatives of Mr. Stockton can claim in no other way, nor can the complainant claim in the right of his wife by substitution. This could only be done if the bequest to Mrs. Stockton had failed of taking effect, and the words of the will had shown, or justified the inference, that the testator had in such event, intended to substitute the heir, or next of kin of Mrs. Stockton. 1 Rop. Leg. 337-339, and cases cited. We can perceive no such intention in any way manifested in this will, and feel bound to give it the same construction between the parties to the present suit, as was given in Reading v. Blackwell [supra].
[809]*809Considering the interest of Mrs. Stockton as vested, and transmissible to her legal representatives, the next question is whether it was land or money at the time of her death. The directions of the will are very positive, to sell the whole of his real estate, and to make the proceeds a personal fund for the purposes of his will; it creates no trust in favour of any person as devisee of real estate, the profits arising before a sale are specifically appropriated to the payment of debts, legacies, and an annuity to his son. When sold, the proceeds are to be carried to the residuary fund, after paying the special legacies, which fund is appropriated as a surplus of the proceeds of the real estate, one half to his son, if he was alive and returned home before the period appointed for the sale; the other half to be divided among the nine residuary legatees, in proportion to their specific legacies. The time of the sale is fixed, the direction to sell is absolute, the only contingency on which it depends is as to time; so that no event can occur or intervene to prevent the distribution of the proceeds among the residuary legatees, as tenants in common. This disposition requires the application of the whole estate in a manner so utterly inconsistent with a division of real property, as leaves no doubt of the testator’s intention to make an “out and out” conversion of his real estate into personalty, for the purpose of distribution, in the very special manner directed. No contingency is provided for in the will, which refers to a reconversion of this residuary fund into land, for the benefit of any person named in the will, or the heir of any legatee, or of the testator; the contrary intent is most manifest. As there are no words of limitation to the devise of this fund, it would pass only a life estate to the distributees as real estate; whereas as money they take it absolutely, and take it in the character which the testator has impressed upon it, by disposing of it as “a residuary fund;” “the proceeds of the sale of the land,” “the surplus;” the sums directed to be taken from it, he calls “legacies,” and the distributees “legatees,” without one word which would be applicable to it as real estate. These provisions of the will bring this case within the well settled principles of courts of equity, which are very correctly laid down by Mr. Roper, in his very valuable work, from the adjudged cases referred to in 1 Rop. Leg. 341, 352, 356, 358, 364, 365, 369, 372, 373. These cases fully establish the rule, that land directed to be converted into money, is in equity to be considered as money, for all the purposes of the will. [Craig v. Leslie] 3 Wheat. [16 U. S.] 504, 577.
The counsel for the complainants consider this case as an exception to the rule, because the testator has postponed the sale of the New York estate to the maturity of James H. White, an event which could not happen till March, 1830; that therefore Mrs. Stockton having died before there could be anjT actual conversion of land into money, had a vested interest only in the land, which passed on her death to her heir, and not to her personal or legal representatives. This construction, it is said, would meet at the purposes of the will, so far as they related to her, or the interest devised to her. But these purposes must be ascertained by looking at what the permanent and final objects to be effected were; if these require an out ana out conversion of the estate into money, the court must ovex-look such as are temporary, which do not require, or even forbid, such conversion for a specified time. This discrimination is most carefully made by the testator, by directing a special application of the rents accruing till the period of sale arrives, and then making a final and absolute appropriation of the proceeds, as a fund to be created by the sale, which became indispensable to its distribution, in the manner directed. This can only be done by considering the New York estate as money, for all the purposes of final distribution, so as to give Mrs. Stockton a right to her proportion of the ninth part of the residuary fund, vested in interest, but the payment postponed till the sale, and transmissible as personal property. Had she lived she must have received it as such, and whoever is entitled to it, must take it as she would have done. Her death before the time of payment, during the continuance of a life estate, or other temporary disposition of the land, will have no effect on its character; it will be considered as money from the death of the testator, when the direction for a sale is absolute, and the proceeds disposed of as money. 1 Rop. Leg. 369; Smith v. Claxton, 4 Madd. 484; Fletcher v. Ashburner [1 Brown, Ch. 497]. It is deemed unnecessary to review the decisions of the English courts of equity on this subject, as the supreme court of the United States have examined it fully, and settled the law in the case of Craig v. Leslie, 3 Wheat. [16 U. S.] 564, 577. Land was devised to trustees to sell, and pay the proceeds to the testator’s brother, residing in Scotland; the land lay in Virginia, where an alien could not hold real estate by devise, but could take and hold personal property. The trustees refused to sell; but on a bill filed by the brother it was held, that it was a bequest of money; the court ordered a sale, and the proceeds to be paid to him. affirming the rule universally to be, “That land directed to be sold and turned into money, and money directed to be employed in the purchase of land, are to be considered as that species of property into which they are directed to be converted, and this in whatever manner the direction is given. The principle on which the doctrine is founded, regarding substance and not the forms, considers the thing directed to be done as done, where nothing has intervened to prevent it.” To this rule there are qualifications. Where the person for whose use the land is to be sold elects to hold it, he may do so, but he must make the election in fact, and in his lifetime; the [810]*810right to make the election does not change the character of the property, which passes to the persons entitled, in the same manner as if the conversion had been made in the lifetime of the first cestui que trust. So where all the purposes of the conversion are effected, or some of the devises cannot take effect, there is a resulting trust for the heir at law, “as the old use not disposed of.” So where the residuary legatee is the cestui que trust of the whole beneficial interest in the money to arise from the sale of the land, he has the same right of election, and resulting trust. [Craig v. Leslie] 3 Wheat. [16 U. S.] 577, 585. But none of these qualifications apply to the present case. Sarah Stockton did not make the election, the purposes of the will require the application of the whole fund, every bequest has taken effect, there is no use not disposed of, and she was not the cestui que trust of the whole beneficial interest, but only of her proportionate ninth part. The counsel for the complainant have considered, that the rule laid down in the third proposition in Roper v. Radeliffe, 9 Mod. 170, 171. “that in respect to the residuary legatee, such a devise shall be deemed as land, in equity, though in respect to the creditors and specific legatees, it is deemed as money,” is to be taken as a settled principle. But it is expressly overruled in Craig v. Leslie, unless the residuary legatee has made an election in his lifetime. 3 Wheat. [16 U. S.] 585, 586.
The same principles have been affirmed by the supreme court of this state in Fairly v. Kline, 2 Penning. 754 [3 N. J. Law]. In that ease the testator devised his homestead to his wife for life, or widowhood; on her death or marriage he directed his son to sell it, and divide the money arising from the sale among his eight children, whom he named, among whom was the wife of the plaintiff. The testator died in 1785, leaving his widow and eight children alive, the plaintiff’s wife died in 1792, leaving five children and her husband, who administered on her estate, the land was sold by consent of all parties in 1797, tiie widow died in 1801. It was held that the plaintiff’s wife took a vested interest in the fund, as personal property, which pas-ed to her representatives.
We feel bound by the authority of these cases, the first was decided by a court by whom our decisions may be revised, the other by a court whose decisions settle the rules of real property in this state, which must be respected as the local law governing the case. [Jackson v. Chew] 12 Wheat. [25 U. S.] 161, 162. The interest of Mrs. Stockton must therefore be considered as personal property, the only remaining question is, whether on her death, it passed to her husband, or next of kin. By the common and statute law of England, the husband who survives his wife, becomes entitled to administer on her estate, and to take to himself all her personal property in action as well as possession. If he dies before he has administered, or before he has completed the administration of her estate, and the next of kin to the wife administers, they are trustees for his representatives. 7 Johns. Ch. 244, and cases cited. Whether he succeeds to her property jure mariti, or as-her next of kin, is not material. He is next of kin by relation of marriage, and takes in consequence of being her husband, and by reason of that relation. 7 Johns. Ch. 246, 247.. Such is the rule under the English statutes of distribution, which have been adopted in this state. Rev. Laws, 174, 179. This rule was-followed in Fairly v. Kline [2 Penning. 754]. where the money was adjudged to be payable to the husband in his own right. The only difference between that case and this is, the' death of the husband; but as all his rights-devolve on his personal representative, that circumstance has no effect upon the case.
The bill of the complainant must be dismissed.